O.C.G.A.
O.C.G.A.

O.C.G.A. § 53-5-2 (2019)

Right to offer will for probate; ‘‘interested person’’ defined

✓ 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) As used in this Code section, the term ‘‘interested person’’ shall include, but shall not necessarily be limited to, any heir of the decedent; legatee, devisee, or beneficiary under the will; creditor of the decedent; purchaser from an heir of the decedent; administrator or temporary administrator appointed for the estate of the decedent prior to the discovery of the will; trustee or beneficiary of a testamentary trust established by the will or of a trust to which the will makes a devise or bequest; and individual making a claim under, or having standing to caveat to the probate of, an earlier will. An agent, conservator, guardian, guardian ad litem, or other fiduciary or appropriate representative of such an interested person may act on such interested person’s behalf.

(b) The right to offer a will for probate shall belong to the executor, if one is named. If for any reason the executor fails to offer the will for probate with reasonable promptness, or if no executor is named, any interested person may offer the will for probate.

History

Code 1981, § 53-5-2, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 2018, p. 356, § 3-1/SB 436; Ga. L. 2020, p. 377, § 1-17/HB 865. The 2020 amendment, effective January 1, 2021, inserted subsection (a); redesignated the existing provisions as subsection (b); and, in subsection (b), deleted the last sentence, which read: ‘‘As used in this Code section, the term ‘interested person’ shall include, but shall not be limited to,

any legatee, devisee, creditor of the decedent, purchaser from an heir of the decedent, an administrator appointed for the decedent prior to the discovery of the will, and any individual making a claim under an earlier will’’.

Annotations

Law reviews. - For annual survey on wills, trusts, guardianships, and fiduciary administration, see 67 Mercer L. Rev. 273 (2015).

COMMENT This section carries forward the concept of former OCGA Sec. 53-3-2. The section is modified to allow interested persons to offer the will for probate if the executor fails to act promptly. JUDICIAL DECISIONS Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former Code 1933, § 113-614, are included in the annotations for this Code section. Renunciation is an act whereby a person, named in a will as executor, declines to take on personally the burden of that office. The act is, therefore, predicated on an existing office. It presupposes the existence of the will. If no will has been made, there is no executorship to renounce. Nor until it is shown that there is a will, can it appear that there is a renunciable executorship. Wheeler v. Wheeler, 82 Ga. App. 831, 62 S.E.2d 579 (1950) (decided under former Code 1933, § 113-614). Interested persons only have right to file caveat. - Georgia Supreme Court has found that only those who have some interest in the will or estate which will be affected or concluded by probate have a right to file a caveat. Georgia cases have recognized those interested persons with standing to caveat a will to include heirs, a purchaser from an heir, a judgment creditor of an heir, an administrator appointed for the testator before the discovery of the will, and persons claiming un-

der an earlier will. Ray v. Stevens, 295 Ga. 895, 764 S.E.2d 809 (2014). Must be an interested person. - Trial court erred by denying two children’s motion to dismiss the petition to probate filed by the decedent’s brother because the brother lacked standing to offer the will to probate under O.C.G.A. § 53-5-2 since the brother was not an interested person as the brother was not a judgment creditor of an heir of the decedent, a purchaser from an heir, a person claiming under an earlier will, or an administrator appointed for the decedent before discovery of the will. Ray v. Stevens, 295 Ga. 895, 764 S.E.2d 809 (2014). General creditor not an interested person. - Being a general creditor of an estate would not give a person standing to offer a will for probate; thus, a general creditor is not an interested person for purposes of O.C.G.A. § 53-5-2. Ray v. Stevens, 295 Ga. 895, 764 S.E.2d 809 (2014). Separation of a legally married couple does not deprive the widow of her right to a year’s support out of the husband’s estate. Knowles v. Knowles, 125 Ga. App. 642, 188 S.E.2d 800 (1972) (decided under former Civil Code 1933,

§ 113-1002); Hunnicutt v. Hunnicutt, 180 Ga. App. 798, 350 S.E.2d 770 (1986) (decided under former O.C.G.A. § 53-5-2); Brown v. Estate of Brown, 246 Ga. App. 332, 539 S.E.2d 824 (2000) (decided under former O.C.G.A. § 53-5-2). Terminable nature of widow’s right to year’s support. - Widow is entitled to no year’s support unless she applies for it prior to her death and prior to her remarriage, and thus, it is apparent on its face that her right is a terminable one. United States v. Edmondson, 331 F.2d 676 (5th Cir. 1964) (decided under former Code 1933, § 53-5-2). Impact of death of widow. - When a widow dies pending proceedings to have a year’s support set aside to her out of her husband’s estate, a return of the appraisers setting aside a year’s support is void.

May v. Braddock, 92 Ga. App. 302, 88 S.E.2d 539 (1955). Right to a year’s support can be waived if application is not made while the spouse is alive and widowed. However, there is no basis to conclude that the year’s support, if applied for, lapses if the award is not finalized before the death of the claimant. Wigley v. Hambrick, 193 Ga. App. 903, 389 S.E.2d 763 (1989), cert. denied, 193 Ga. App. 911, 389 S.E.2d 763 (1990) (decided under former O.C.G.A. § 53-5-2). Cited in Fletcher v. Gillespie, 201 Ga. 377, 40 S.E.2d 45 (1946); Heath v. Jones, 168 F.2d 460 (5th Cir. 1948); Oakley v. Anderson, 235 Ga. 607, 221 S.E.2d 31 (1975); In re Estate of Ehlers, 289 Ga. App. 14, 656 S.E.2d 169 (2007).

RESEARCH REFERENCES Am. Jur. 2d. - 79 Am. Jur. 2d, Wills, § 776. C.J.S. - 95 C.J.S., Wills, § 468. ALR. - Necessity of allegations that contestant of will is an interested party, 117 A.L.R. 1455.

Statutes dealing with existing intestate administration, upon discovery of will, 65 A.L.R.2d 1201.

Notes of Decisions
Cited in 29 cases (1 in the last 5 years), 1984–2025 · leading case: Baker v. Baker, 390 S.E.2d 892 (Ga. Ct. App. 1990).
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Baker v. Baker, 390 S.E.2d 892 (Ga. Ct. App. 1990). · cites it 16× “This is established by demonstrating the applicant belongs within one of the classes of intended beneficiaries of the year’s support statute codified in OCGA § 53-5-2 (b). Among those named as eligible applicants is the spouse of the deceased.”
Richards v. Wadsworth, 496 S.E.2d 535 (Ga. Ct. App. 1998). · cites it 18× “William Frank Richards applied for a year’s support (OCGA § 53-5-2) after the death of his wife, Jo Richards.”
Holland v. Holland, 599 S.E.2d 242 (Ga. Ct. App. 2004). · cites it 14× “OCGA § 53-5-2 establishes the parameters for a year’s support award.”
Gentry v. Black, 351 S.E.2d 188 (Ga. 1987). · cites it 9× “The Court of Appeals found the issue in the case to be whether under OCGA § 53-5-2 a surviving spouse is automatically entitled to an award for year’s support from the estate of his or her deceased spouse without regard to whether any economic dependency actually existed between…”
Driskell v. Crisler, 515 S.E.2d 416 (Ga. Ct. App. 1999). · cites it 16× “2 OCGA § 53-5-2; see also Smith v. Sanders, 208 Ga.”
Johnson v. Johnson, 405 S.E.2d 544 (Ga. Ct. App. 1991). · cites it 10× “Under OCGA § 53-5-2, a year’s support can only be set aside from property interests which were a part of the decedent’s estate at the time of her death.”
McClure v. Mason, 493 S.E.2d 16 (Ga. Ct. App. 1997). · cites it 8× “, filed an application for year’s support pursuant to OCGA § 53-5-2. Dr. Mason had declared Chapter 11 bankruptcy in 1988, and her petition sought property subject to the claims of Dr.”
Kittles v. Kittles, 370 S.E.2d 803 (Ga. Ct. App. 1988). · cites it 4× “Subsection (c) (2) of this Code section provides that other “criteria as the court deems equitable and proper” is relevant to the amount of the widow’s year’s support. From this perspective, we find that the trial court did not abuse its discretion in allowing evidence of estate…”
Hamrick v. Bonner, 354 S.E.2d 687 (Ga. Ct. App. 1987). · cites it 8× “It is certainly true that the appellee would not have had standing to bring the action had the subsequent marriage not been annulled, for OCGA § 53-5-2 (c) requires that an action for a year's support "by a spouse or for the benefit of a spouse must be made and filed during the…”
Hunnicutt v. Hunnicutt, 350 S.E.2d 770 (Ga. Ct. App. 1986). · cites it 6× “§ 53-508 (husband’s duty to provide necessaries for wife during separation) eliminated any legal obligation of John Hunnicutt to support his wife, so that she is precluded from obtaining a year’s support from his estate.”
Harris v. Johnson, 570 S.E.2d 582 (Ga. Ct. App. 2002). · cites it 6× “569, 571 ( 351 SE2d 188 ) (1987) (“[u]nder procedures contained in [former] OCGA § 53-5-2 (b), 4 the probate judge appoints appraisers to determine the amount of the award”).”
Wigley v. Hambrick, 389 S.E.2d 763 (Ga. Ct. App. 1989). · cites it 2× “” This provision is now contained in OCGA § 53-5-2 (d), which preserves the three-year limitation and requires filing of the application “during the time the spouse is widowed and while the spouse is living and not otherwise.”
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