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2018 Georgia Code 53-5-51 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 53-5-51 Case Law from Google Scholar Amendments to OCGA 53-5-51

TITLE 53 WILLS, TRUSTS, AND ADMINISTRATION OF ESTATES

Section 5. Probate, 53-5-1 through 53-5-71.

ARTICLE 6 JURISDICTION

53-5-51. Contents of petition; service of notice; issuance of relief.

  1. The petition made pursuant to Code Section 53-5-50 shall set forth the allegations on which the action is based and the name and address of the then acting personal representative, if any, of the estate, or, if none, the beneficiaries of the previously probated will required to be served by Code Section 53-5-22. The petition shall conclude with a prayer for the issuance of an order vacating, setting aside, or amending the earlier probate; the probate of the new will or codicil in solemn form; and the issuance of new letters testamentary.
  2. The beneficiaries under the previously probated will shall be represented in the action by the then acting personal representative, if any; and service of notice upon the personal representative in the same manner as provided for by law under Chapter 11 of this title shall be the equivalent of service upon the beneficiaries.
  3. If there is no then acting personal representative, the petition shall be served upon the beneficiaries who are required to be served by Code Section 53-5-22 of the previously probated will, in the same manner as upon the heirs, unless all such parties assent to the petition.
  4. If the then acting personal representative acknowledges service of the petition and assents to the relief in the acknowledgment of service, the relief upon the petition may issue without delay. In the event there is no then acting personal representative, if all the beneficiaries acknowledge service of the petition and assent in their acknowledgments, the relief may issue without delay.

(Code 1981, §53-5-51, enacted by Ga. L. 1996, p. 504, § 10.)

COMMENT

This section replaces former OCGA Sec. 53-3-61.

JUDICIAL DECISIONS

Civil Practice Act not applicable to petition to set-aside in probate proceeding.

- Probate court erred in rejecting the step-son's set-aside petition on the basis that the petition did not satisfy O.C.G.A. § 9-11-60(d) as that provision set out the narrow grounds on which a motion to set aside a judgment could be brought under the Civil Practice Act, O.C.G.A. T. 9, Ch. 11, but set-aside petitions in probate proceedings were special statutory proceedings, and the specific rules of practice and procedure for such petitions were set out at O.C.G.A. §§ 53-5-50 and53-5-51; thus, to the extent that those specific rules of practice and procedure conflicted with the Civil Practice Act, pursuant to O.C.G.A. § 9-11-81, the Civil Practice Act did not apply; thus, the probate court's order ruling on the set-aside petition was reversed. Estate of Jones, Ga. App. , 815 S.E.2d 599 (2018).

Civil Practice Act not applicable to petition to set-aside in probate proceeding.

- Because the Civil Practice Act's (O.C.G.A. T. 9, Ch. 11) procedure for attacking a judgment through a set-aside motion was more restrictive than the Probate Code's procedure for attacking an order admitting a will to probate on the ground that another will should be admitted to probate, the constraints of the Civil Practice Act did not apply in the probate proceeding, and the probate court erred in denying the step-son's set-aside petition for failing to meet the requirements of the Civil Practice Act, rather than ruling on the merits of the petition. Estate of Jones, Ga. App. , 815 S.E.2d 599 (2018).

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