Wood & Meredith,
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Relevant Provisions of the Georgia Probate Code (2008).
CODE OF GEORGIA
Title 53. WILLS, TRUSTS, AND ADMINISTRATION OF ESTATES
Chapter 1. GENERAL PROVISIONS
Article 1. IN GENERAL
Current through the 2006 Legislative Session
OCGA § 53-2-1.
(a) For purposes of this Code section:
(1) Children of the decedent who are born after the decedent's death are considered children in being at the decedent's death, provided they were conceived prior to the decedent's death, were born within ten months of the decedent's death, and survived 120 hours or more after birth; and
(2) The half-blood, whether on the maternal or paternal side, are considered equally with the whole-blood, so that the children of any common parent are treated as brothers and sisters to each other.
(b) When a decedent died without a will, the following rules shall determine such decedent's heirs:
(1) Upon the death of an individual who is survived by a spouse but not by any child or other descendant, the spouse is the sole heir. If the decedent is also survived by any child or other descendant, the spouse shall share equally with the children, with the descendants of any deceased child taking that child's share, per stirpes; provided, however, that the spouse's portion shall not be less than a one-third share;
(2) If the decedent is not survived by a spouse, the heirs shall be those relatives, as provided in this Code section, who are in the nearest degree to the decedent in which there is any survivor;
(3) Children of the decedent are in the first degree, and those who survive the decedent shall share the estate equally, with the descendants of any deceased child taking, per stirpes, the share that child would have taken if in life;
(4) Parents of the decedent are in the second degree, and those who survive the decedent shall share the estate equally;
(5) Siblings of the decedent are in the third degree, and those who survive the decedent shall share the estate equally, with the descendants of any deceased sibling taking, per stirpes, the share that sibling would have taken if in life; provided, however, that, subject to the provisions of paragraph (1) of subsection (f) of Code Section 53-1-20, if no sibling survives the decedent, the nieces and nephews who survive the decedent shall take the estate in equal shares, with the descendants of any deceased niece or nephew taking, per stirpes, the share that niece or nephew would have taken if in life;
(6) Grandparents of the decedent are in the fourth degree, and those who survive the decedent shall share the estate equally;
(7) Uncles and aunts of the decedent are in the fifth degree, and those who survive the decedent shall share the estate equally, with the children of any deceased uncle or aunt taking, per stirpes, the share that uncle or aunt would have taken if in life; provided, however, that, subject to the provisions of paragraph (1) of subsection (f) of Code Section 53-1-20, if no uncle or aunt of the decedent survives the decedent, the first cousins who survive the decedent shall share the estate equally; and
(8) The more remote degrees of kinship shall be determined by counting the number of steps in the chain from the relative to the closest common ancestor of the relative and decedent and the number of steps in the chain from the common ancestor to the decedent. The sum of the steps in the two chains shall be the degree of kinship, and the surviving relatives with the lowest sum shall be in the nearest degree and shall share the estate equally.
§ 53-1-2.
As used in this chapter and Chapters 2 through 11 of this title, the term:
(1) "Administrator" means any person appointed and qualified to administer an intestate estate, including an intestate estate already partially administered by an administrator and from any cause unrepresented.
(2) "Administrator with the will annexed" means any person, other than an executor, appointed and qualified to administer a testate estate, including a testate estate already partially administered and from any cause unrepresented.
(3) "Beneficiary" means a person, including a trust, who is designated in a will to take an interest in real or personal property.
(4) "Codicil" means an amendment to or republication of a will.
(5) "County administrator" means any individual or individuals appointed by the probate court of the county and qualified to represent an estate that is unrepresented and unlikely to be represented.
(6) "Descendants" means the lineal descendants of an individual including those individuals who are treated as lineal descendants by virtue of adoption.
(7) "Executor" means any person nominated in a will who has qualified to administer a testate estate, including a person nominated as alternative or successor executor.
(8) "Guardian" means the guardian ad litem or representative described in Code Section 53-11-2 who represents one or more parties to a probate court proceeding who are not sui juris, are unborn, or are unknown.
(9) "Heirs" means those one or more individuals who survive the decedent and are determined under the rules of inheritance to take the property of the decedent that is not disposed of by will.
(10) "Nominated executor" means any person nominated in the will to serve as executor who has not yet qualified to serve as executor.
(11) "Person" means an individual, corporation, partnership, association, joint-stock company, business trust, unincorporated organization, limited liability company, or two or more persons having a joint or common interest, including an individual or a business entity acting as a personal representative or in any other fiduciary capacity.
(12) "Personal representative" means any administrator, administrator with the will annexed, county administrator, or executor.
(13) "Qualified" means that a personal representative has taken the oath, posted any required bond, and been issued letters of administration or letters testamentary, as provided in this title.
(14) "Sui juris" means an individual is age 18 or over and not suffering from any legal disability.
(15) "Temporary administrator" means any person granted temporary letters of administration upon an unrepresented estate.
(16) "Testamentary gift" means the interest in real or personal property which a beneficiary is designated to take in a will.
(17) "Will" means the legal declaration of an individual's testamentary intention regarding that individual's property or other matters. Will includes the will and all codicils to the will.
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OCGA § 53-1-8.
A decree of adoption, whether issued by a court of this state or by a court of any other jurisdiction, shall have the effect described in Code Section 19-8-19, and the adoptive parents and relatives of the adoptive parents shall likewise be entitled to inherit from and through the adopted individual under the laws of intestacy in the absence of a will and to take as parents or relatives of the parents of the adopted individual under the provisions of any instrument of testamentary gift, unless expressly excluded therefrom.
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§ 53-2-1.
(a) For purposes of this Code section:
(1) Children of the decedent who are born after the decedent's death are considered children in being at the decedent's death, provided they were conceived prior to the decedent's death, were born within ten months of the decedent's death, and survived 120 hours or more after birth; and
(2) The half-blood, whether on the maternal or paternal side, are considered equally with the whole-blood, so that the children of any common parent are treated as brothers and sisters to each other.
(b) When a decedent died without a will, the following rules shall determine such decedent's heirs:
(1) Upon the death of an individual who is survived by a spouse but not by any child or other descendant, the spouse is the sole heir. If the decedent is also survived by any child or other descendant, the spouse shall share equally with the children, with the descendants of any deceased child taking that child's share, per stirpes; provided, however, that the spouse's portion shall not be less than a one-third share;
(2) If the decedent is not survived by a spouse, the heirs shall be those relatives, as provided in this Code section, who are in the nearest degree to the decedent in which there is any survivor;
(3) Children of the decedent are in the first degree, and those who survive the decedent shall share the estate equally, with the descendants of any deceased child taking, per stirpes, the share that child would have taken if in life;
(4) Parents of the decedent are in the second degree, and those who survive the decedent shall share the estate equally;
(5) Siblings of the decedent are in the third degree, and those who survive the decedent shall share the estate equally, with the descendants of any deceased sibling taking, per stirpes, the share that sibling would have taken if in life; provided, however, that, subject to the provisions of paragraph (1) of subsection (f) of Code Section 53-1-20, if no sibling survives the decedent, the nieces and nephews who survive the decedent shall take the estate in equal shares, with the descendants of any deceased niece or nephew taking, per stirpes, the share that niece or nephew would have taken if in life;
(6) Grandparents of the decedent are in the fourth degree, and those who survive the decedent shall share the estate equally;
(7) Uncles and aunts of the decedent are in the fifth degree, and those who survive the decedent shall share the estate equally, with the children of any deceased uncle or aunt taking, per stirpes, the share that uncle or aunt would have taken if in life; provided, however, that, subject to the provisions of paragraph (1) of subsection (f) of Code Section 53-1-20, if no uncle or aunt of the decedent survives the decedent, the first cousins who survive the decedent shall share the estate equally; and
(8) The more remote degrees of kinship shall be determined by counting the number of steps in the chain from the relative to the closest common ancestor of the relative and decedent and the number of steps in the chain from the common ancestor to the decedent. The sum of the steps in the two chains shall be the degree of kinship, and the surviving relatives with the lowest sum shall be in the nearest degree and shall share the estate equally.
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OCGA § 53-2-3.
The rights of inheritance of a child born out of wedlock shall be as follows:
(1) A child born out of wedlock may inherit in the same manner as though legitimate from or through the child's mother, the other children of the mother, and any other maternal kin;
(2)(A) A child born out of wedlock may not inherit from or through the child's father, the other children of the father, or any paternal kin by reason of the paternal kinship, unless:
(i) A court of competent jurisdiction has entered an order declaring the child to be legitimate, under the authority of Code Section 19-7-22 or such other authority as may be provided by law;
(ii) A court of competent jurisdiction has otherwise entered a court order establishing paternity;
(iii) The father has executed a sworn statement signed by him attesting to the parent-child relationship;
(iv) The father has signed the birth certificate of the child; or
(v) There is other clear and convincing evidence that the child is the child of the father.
(B)(i) Subparagraph (A) of this paragraph notwithstanding, a child born out of wedlock may inherit from or through the father, other children of the father, or any paternal kin by reason of the paternal kinship if evidence of the rebuttable presumption of paternity described in this subparagraph is filed with the court before which proceedings on the estate are pending and the presumption is not overcome to the satisfaction of the trier of fact by clear and convincing evidence.
(ii) There shall exist a rebuttable presumption of paternity of a child born out of wedlock if parentage-determination genetic testing establishes at least a 97 percent probability of paternity. Parentage-determination genetic testing shall include, but not be limited to, red cell antigen, human leucocyte antigen (HLA), red cell enzyme, and serum protein electrophoresis tests or testing by deoxyribonucleic acid (DNA) probes.
(C) If any one of the requirements of divisions (i) through (v) of subparagraph (A) of this paragraph is fulfilled, or if the presumption of paternity set forth in subparagraph (B) of this paragraph shall have been established and shall not have been rebutted by clear and convincing evidence, a child born out of wedlock may inherit in the same manner as though legitimate from and through the child's father, the other children of his or her father, and any other paternal kin;
(3) In distributions under this Code section, the children of a deceased child born out of wedlock shall represent that deceased child.
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OCGA § 53-2-7.
(a) Upon the death of an intestate decedent who is the owner of any interest in real property, the title to any such interest which survives the intestate decedent shall vest immediately in the decedent's heirs at law, subject to divestment by the appointment of an administrator of the estate.
(b) The title to all other property owned by an intestate decedent shall vest in the administrator of the estate for the benefit of the decedent's heirs and creditors.
(c) Upon the appointment of an administrator, the title to any interest in real property which survives the intestate decedent shall vest in the administrator for the benefit of the heirs and creditors of the decedent, and title to such property shall not revest in the heirs until the administrator assents to such revesting. For purposes of this Code section, the assent of the administrator shall be proved in the manner set out in Code Section 53-8-15.
(d) Upon the appointment of an administrator, the right to the possession of the whole estate is in the administrator, and, as long as administration continues, the right to recover possession of the estate from all other persons is solely in the administrator. The administrator may recover possession of any part of the estate from the heirs at law or purchasers from them; but, in order to recover real property, it is necessary for the administrator to show, upon the trial, either that the property which is the subject of the action has been in the administrator's possession and without the administrator's consent is held by the defendant at the time of bringing the action or that it is necessary for the administrator to have possession for the purpose of paying the debts, making a proper distribution, or for other purposes provided for by law. An order for sale or distribution, granted by the judge of the probate court after notice to the defendant, shall be conclusive evidence of either fact.
(e) If an order has been entered under Code Section 53-2-41 that no administration is necessary, or if the administrator has assented to the vesting of title in the heirs, the heirs may take possession of the property or may sue for possession of the property in their own right.
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OCGA § 53-2-8.
(a) When the spouse of an intestate decedent dies intestate and without ascertainable heirs within six months of the decedent's death, any undistributed property of the decedent to which the spouse had been entitled prior to the spouse's death shall not escheat but shall be distributed to the heirs of the decedent who would have inherited the property under the intestacy laws if the spouse had predeceased the decedent.
(b) The nonexistence of heirs of the spouse may be determined by publication as provided in Code Section 53-2-51. If no heir of the spouse appears, the property, less the expenses of the proceedings to determine the nonexistence of heirs, shall be paid over as provided in subsection (a) of this Code section.
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Wood & Meredith,
LLP. - http://www.woodandmeredith.com/ |