O.C.G.A. § 53-9-2 (2019)
Filing and contents of petition; publication of citation
(a) A petition for administration of the estate, for the probate in common form or solemn form of the will, for year’s support, or for an order that no administration is necessary may be filed for the estate of a missing individual whose death may be presumed or established in the probate court as provided in Code Section 53-9-1. The petition may be made by anyone who would be entitled to file such petition on the estate of the missing individual if the missing individual were known to be dead and shall be filed in the county in which the estate of the missing individual would be administered were the missing individual known to be dead.
(b) In addition to complying with all of the requirements for petitions pertaining to the administration of an estate or the probate of a will or year’s support or an order that no administration is necessary, as appropriate, the petition regarding the estate of a missing individual who is believed to be dead shall set forth the circumstances under which the individual disappeared, what inquiry has been made as to the individual’s whereabouts, and such evidence as shall be offered, if necessary, for the purpose of proving death by a preponderance of the evidence.
(c) If the court finds the petition to be in compliance with the requirements set forth in subsection (b) of this Code section, the court shall issue an order directing that a citation issue and be published once a week for four weeks in the official newspaper of the county in which the petition is made giving notice that on a date certain, which shall be at least 90 days after the first publication of such citation, evidence will be heard by the court concerning the alleged absence of the individual presumed to be dead and the circumstances and duration of such absence and requiring the missing individual, if alive, or any other person to produce and present to the court evidence that the missing individual is still in life. The publication of citation required by this subsection may be combined with any other service of notice required for the issuance of letters testamentary or letters of adminis694 tration, an order for year’s support, or an order that no administration is necessary or directed by the court pursuant to Code Section 53-11-5. Such service of notice shall be made as provided in Chapter 11 of this title on all individuals who would be heirs if the missing individual were known to be dead. The order may also direct that the petitioner make a search for the missing individual and shall specify the manner in which the search is to be conducted to ensure that, in light of the circumstances of the particular case, a diligent and reasonable effort has been made to locate the missing individual. The order may prescribe any methods of search deemed by the judge to be adequate and appropriate, including but not limited to publishing notices in newspapers in appropriate locations and making inquiry of governmental agencies and of the missing individual’s relatives and friends and at the missing individual’s last place of abode or other appropriate places.
History
Code 1981, § 53-9-2, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 2011, p. 752, § 53/HB 142; Ga. L. 2020, p. 377, § 1-60/HB 865. The 2020 amendment, effective January 1, 2021, in subsection (c), in the first sentence, substituted ‘‘citation issue and’’ for ‘‘notice’’, inserted ‘‘in the official newspaper of the county in which the petition is made’’, substituted ‘‘date certain’’ for
‘‘day stated’’, and substituted ‘‘such citation’’ for ‘‘the notice’’; in the second sentence, substituted ‘‘publication of citation’’ for ‘‘notice’’, inserted ‘‘service of ’’, substituted ‘‘testamentary or letters of administration,’’ for ‘‘or’’, and added ‘‘or directed by the court pursuant to Code Section 53-11-5’’ at the end; and in the third sentence, substituted ‘‘Such service of ’’ for ‘‘The’’ and substituted ‘‘made’’ for ‘‘served’’.
Annotations
COMMENT This section and the next section replace former OCGA Sec. 53-9-2. JUDICIAL DECISIONS Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former O.C.G.A. § 53-9-2 are included in the annotations for this Code section. Presumption of death arising from seven years’ absence of person from accustomed place of abode, unheard from, is not conclusive, may be rebutted by proof, and is ordinarily a question of fact to be determined by the jury. Mutual Life Ins. Co. v. Dickens, 44 Ga. App. 429, 161 S.E. 657 (1931) (decided under former law). With respect to persons of whom no
account can be given, presumption of duration of life ends at expiration of seven years from the time when the person was last known to be living. Mutual Life Ins. Co. v. Dickens, 44 Ga. App. 429, 161 S.E. 657 (1931) (decided under former law). Later action. - Order of probate court under former O.C.G.A. § 53-9-2 establishing presumption of death of insured constituted a rebuttable presumption of law in later case involving action on life insurance policy. Ritter v. Prudential Ins. Co. of Am., 538 F. Supp. 398 (N.D. Ga. 1982) (decided under former O.C.G.A. § 53-9-2).
RESEARCH REFERENCES Am. Jur. 2d. - 1 Am. Jur. 2d, Absentees, §§ 1, 2, 17, 19.
C.J.S. - 1 C.J.S., Absentees, §§ 4, 5, 8 et seq, 18, 19, 20, 24, 25, 26.
ALR. - Validity of by-law of mutual benefit association preventing recovery upon presumption of death from seven years’ absence, 36 A.L.R. 982; 40 A.L.R. 1274. Presumption of death from absence as affected by fact that person was fugitive from justice, 44 A.L.R. 1488. Presumption of death as evidence, 115 A.L.R. 404.
Form and sufficiency of proof of death in case of insured’s disappearance, 26 A.L.R.2d 1073. Necessity and sufficiency of showing of search and inquiry by one relying on presumption of death from 7 years’ absence, 99 A.L.R.2d 307.