O.C.G.A. § 53-7-75 (2019)

Statute text

The probate court, upon its own motion or upon the motion of any party in interest, whenever it appears that a question of construction of a will is involved in the accounting, shall enter an order transferring the accounting to the superior court for the determination of all such questions, which shall be presented to, heard, and determined by the superior court as appeals from the probate court are presented, heard, and determined. The probate court may suspend further proceedings pending a final decision of the superior court. After a final determination of the questions of construction, the probate court shall proceed with the accounting.

History

(Code 1981, § 53-7-75, enacted by Ga. L. 1996, p. 504, § 10.)

Annotations

COMMENT

This section carries forward former OCGA Sec. 53-7-188.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under Ga. L. 1943, p. 409, § 9, and former O.C.G.A. § 53-7-188 are included in the annotations for this Code section.

Jurisdiction. - There was evidence and legal authority to support the probate court's ruling that retirement funds belonged to the decedent's son because the son was named as beneficiary, and the funds did not pass into the decedent's estate because the executor testified that the executor concluded that the retirement funds were not an estate asset so the executor did not attempt to collect the funds from the son; resolution of the issue of the retirement proceeds in the context of a petition for settlement of accounts under O.C.G.A. § 53-7-63 fell within the probate court's jurisdiction, and the probate court did not err in failing to transfer the claim to the superior court under O.C.G.A. § 53-7-75 because the claim involved a conflict between the will and a designation of beneficiary, and not the construction of the will itself. In re Estate of Long, 307 Ga. App. 896, 706 S.E.2d 704 (2011).

Appeal of non-final court order. - When a superior court's ruling in a probate matter was directed solely to the will construction issue placed before it by a removal proceeding pursuant to O.C.G.A. § 53-7-75, after which the superior court returned the case to the probate court, and the administration of the estate remained pending, the superior court order was not a final judgment, and since the decedent's daughter failed to comply with the interlocutory procedures in O.C.G.A. § 5-6-34(b), the appellate court was without jurisdiction to hear an appeal brought by the daughter. Bandy v. Elmo, 280 Ga. 221, 626 S.E.2d 505 (2006).

Construction of will not within probate court's jurisdiction. - Because construction of a will is generally not within the jurisdiction of the probate court, the probate court's denial of a trustee's motion for accounting and distribution under O.C.G.A. § 15-9-86 constituted an exercise of a power the probate court did not have, and the judgment of that court must be reversed. Simon v. Bunch, 260 Ga. 201, 391 S.E.2d 648 (1990) (decided under former O.C.G.A. § 53-7-188).

Cited in Davis v. Davis, 94 Ga. App. 459, 95 S.E.2d 42 (1956); Ray v. Beneventi, 220 Ga. 209, 190 S.E.2d 514 (1972).

RESEARCH REFERENCES

Am. Jur. 2d. - 80 Am. Jur. 2d, Wills, § 1274 et seq.

C.J.S. - 34 C.J.S., Executors and Administrators, § 649.

ALR. - Validity and construction of trust provision authorizing trustee to purchase trust property, 39 A.L.R.3d 836.