O.C.G.A. § 53-7-75 (2019)
Construction of will by superior court
(a) Except as otherwise provided in subsection (b) of this Code section and in paragraph (7) of subsection (a) of Code Section 15-9-127, whenever it appears that a question of construction of a will is involved in the accounting, the probate court, upon its own motion or upon the motion of any party in interest, 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.
(b) A probate court subject to Article 6 of Chapter 9 of Title 15 shall have jurisdiction over questions of construction of a will involved in the accounting and may determine all such questions without transferring the accounting to the superior court.
(c) The probate court may suspend further proceedings pending a final determination of the questions of construction.
(d) 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; Ga. L. 2020, p. 377, § 1-54/HB 865. The 2020 amendment, effective January 1, 2021, rewrote this Code section, which read: ‘‘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.’’
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 in-
volved 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.