O.C.G.A.

O.C.G.A. § 53-4-2 (2019)

When will takes effect

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)

Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.

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A will shall take effect instantly upon the death of the testator however long probate may be postponed.

History

Code 1981, § 53-4-2, enacted by Ga. L. 1996, p. 504, § 10.

Annotations

Law reviews. - For annual survey of law of wills, trusts, guardianships, and fiduciary administration, see 56 Mercer L. Rev. 457 (2004).

For comment on Jenkins v. United States, 296 F. Supp. 203 (M.D. Ga. 1968), see 3 Ga. L. Rev. 766 (1969).

JUDICIAL DECISIONS Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former Code 1933, § 113-105, are included in the annotations for this Code section. Application of pre-1998 probate code. - Trial court did not err when the court applied the law in place before the 1998 probate code was adopted to determine whether a husband and wife had a contract not to revoke their joint and mutual will because the issue was not the

propriety of the devises in the will but whether the husband and wife had a contract not to revoke the will; the 1998 probate code only applies to contracts entered into on or after January 1, 1998, so it would not apply to any contract allegedly made in 1980. Davis v. Parris, 289 Ga. 201, 710 S.E.2d 757 (2011). Statute did not mean that an unprobated will is operative. - Only after a will is probated will rights in property be fixed retrospectively with ref-

erence to the law and factual circumstances existing at the time of the testator’s death. Woodall v. Pharr, 119 Ga. App. 692, 168 S.E.2d 645 (1969), aff ’d, 226 Ga. 1, 172 S.E.2d 404 (1970) (decided under former Code 1933, § 113-105). It is necessary to probate a will before the will can be recognized as an instrument affecting rights in property. Woodall v. Pharr, 119 Ga. App. 692, 168 S.E.2d 645 (1969), aff ’d, 226 Ga. 1, 172 S.E.2d 404 (1970) (decided under former Code 1933, § 113-105). Will is to be taken as speaking from the time of the death of the testator. Moore v. Segars, 192 Ga. 190, 14 S.E.2d 752 (1941) (decided under former Code 1933, § 113-105). To take effect a will not only must be a validly executed instrument disposing of the testator’s property at the testator’s death, but it must remain so right up to its

effective date, the testator’s death. Lawson v. Hurt, 217 Ga. 827, 125 S.E.2d 480 (1962) (decided under former Code 1933, § 113-105). If futurity is annexed to the substance of the gift, the vesting is suspended; but if it relates to the time of payment only, the title vests instantly upon the death of the testator. Lassiter v. Bank of Dawson, 191 Ga. 208, 11 S.E.2d 910 (1940) (decided under former Code 1933, § 113-105). Cited in Parks v. Gresham, 185 Ga. 470, 195 S.E. 728 (1938); Fitzgerald v. Morgan, 193 Ga. 802, 20 S.E.2d 73 (1942); Nixon v. Nixon, 194 Ga. 301, 21 S.E.2d 702 (1942); Heath v. Jones, 168 F.2d 460 (5th Cir. 1948); Cummings v. Cummings, 89 Ga. App. 529, 80 S.E.2d 204 (1954); Jenkins v. United States, 428 F.2d 538 (5th Cir. 1970); Mitchell v. Mitchell, 279 Ga. 282, 612 S.E.2d 274 (2005).

RESEARCH REFERENCES ALR. - Governing law of will as affected by change of domicil after its execution, 57 A.L.R. 229. Time as of which members of class described as testator’s ‘‘heirs,’’ ‘‘next of kin,’’

‘‘relations,’’ etc., to whom a future gift is made, are to be ascertained, 169 A.L.R. 207. Legal status of posthumously conceived child of decedent, 17 A.L.R.6th 593.

Notes of Decisions

Cited in 19 cases, 1984–2011 · leading case: Tolbert v. Murrell, 322 S.E.2d 487 (Ga. 1984).

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Tolbert v. Murrell, 322 S.E.2d 487 (Ga. 1984). · cites it 4× “488, 492 ( 80 SE2d 817 ) (1954); OCGA § 53-4-2 (2). The question here, then, is whether OCGA § 51-4-2, supra, denies children who have lost their father by wrongful death equal protection of the law when the deceased is survived by a wife.”

Haley v. Regions Bank, 586 S.E.2d 633 (Ga. 2003). · cites it 2× “See also OCGA § 53-4-2. It does not become operative until that time.”

Stewart v. Bourn, 552 S.E.2d 450 (Ga. Ct. App. 2001). · cites it 12× “The parties stipulated that all of these persons were the decedent’s heirs at law under OCGA § 53-4-2 (5). 2 Stewart, one of the four surviving siblings, is the executor of the decedent’s estate.”

Davis v. Parris, 710 S.E.2d 757 (Ga. 2011). · cites it 4× “As a remedy, the trial court ordered that the 1980 will be specifically enforced by equity.”

McLendon v. Priest, 376 S.E.2d 679 (Ga. 1989). · cites it 2× “See OCGA § 53-4-2. This construction renders the agreement sufficiently definite to be enforced.”

Sieg v. Sieg, 455 S.E.2d 830 (Ga. 1995). · cites it 2× “563 (1849), defendant contends the prenuptial agreement (which plaintiffs attached to their *385 complaint) constituted only “marriage articles,” see OCGA § 19-3-62 (a), to which plaintiffs were not parties and thus because plaintiffs are merely collateral relatives, see OCGA §…”

Bacon v. Smith, 474 S.E.2d 728 (Ga. Ct. App. 1996). · cites it 4× “” OCGA § 53-4-2 (5) provides, in pertinent part, that “[bjrothers and sisters of the intestate shall stand in the second degree and shall inherit if there is no surviving spouse, child, or representative of a child.”

Peters v. Hosp. Auth. of Elbert Cty., 458 S.E.2d 628 (Ga. 1995). · cites it 2× “See 43 CJS 561, Infants, § 219; OCGA § 53-4-2 (4) (a child born posthumously has a right of inheritance); Billingsley v.”

In Re Last Will & Testament of Lewis, 434 S.E.2d 472 (Ga. 1993). · cites it 2× “1 OCGA § 53-4-2 (5) provides: Brothers and sisters of the intestate shall stand in the second degree and shall inherit if there is no surviving spouse, child, or representative of a child .”

Keith v. Johnson, 440 S.E.2d 230 (Ga. Ct. App. 1993). · cites it 2× “XX (“[n]o conviction shall work corruption of blood or forfeiture of estate”), and OCGA § 44-5-210 (giving the state a lien on the property of a convicted offender for the costs of the prosecution), this court held that while some states had said that one who kills another…”

Tolbert v. Whatley, 478 S.E.2d 587 (Ga. Ct. App. 1996). · cites it 2× “As the law existed at the time of Elder’s death, an illegitimate child could inherit from his father only if a competent court had entered an order establishing parentage. Former OCGA § 53-4-4 (c) (1982 ed.”

Varner v. Sharp, 464 S.E.2d 388 (Ga. Ct. App. 1995). · cites it 2× “If the child does prove that the decedent was her father and that he intended for her to inherit from his estate, the court must determine, based upon the rules of intestate succession (OCGA § 53-4-2 et seq.), the amount to which she is entitled.”

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