General Provisions of Georgia Probate

Relevant Provisions of the Georgia Probate Code (2008).

Jurisdiction of the Georgia Probate Court

(a) The probate court shall have original jurisdiction over any action to vacate, set aside, or amend its order admitting a will to probate which alleges:

(b) Any such action shall be combined with a petition to probate in solemn form the other will or codicil. The court shall consider the petition to probate together with the action to vacate, set aside, or amend; and the court shall grant relief as is appropriate with respect to each matter.

(a) 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.

(b) 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.

(c) 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.

(d) 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.

This article shall be known and may be cited as the "Uniform Transfer on Death Security Registration Act."

(1) "Beneficiary form" means a registration of a security which indicates the present owner of the security and the intention of the owner regarding the person who will become the owner of the security upon the death of the owner.

(2) "Register," including its derivatives, means to issue a certificate showing the ownership of a certificated security or, in the case of an uncertificated security, to initiate or transfer an account showing ownership of securities.

(3) "Registering entity" means a person who originates or transfers a security title by registration and includes a broker maintaining security accounts for customers and a transfer agent or other person acting for or as an issuer of securities.

(4) "Security" means a share, participation, or other interest in property, in a business, or in an obligation of an enterprise or other issuer and includes a certificated security, an uncertificated security, and a security account.

(A) A reinvestment account associated with a security, a securities account with a broker, a cash balance in a brokerage account, cash, interest, earnings, or dividends earned or declared on a security in an account, a reinvestment account, or a brokerage account, whether or not credited to the account before the owner's death; or

(B) A cash balance or other property held for or due to the owner of a security as a replacement for or product of an account security, whether or not credited to the account before the owner's death.

Only individuals whose registration of a security shows sole ownership by one individual or multiple ownership by two or more with right of survivorship, rather than as tenants in common, may obtain registration in beneficiary form. Multiple owners of a security registered in beneficiary form hold as joint tenants with right of survivorship, as tenants by the entireties, or as owners of community property held in survivorship form and not as tenants in common.

A security may be registered in beneficiary form if the form is authorized by this or a similar statute of the state of organization of the issuer or registering entity, the location of the registering entity's principal office, the office of its transfer agent or its office making the registration, or by this or a similar statute of the state listed as the owner's address at the time of registration.

A registration governed by the law of a jurisdiction in which this or a similar statute is not in force or was not in force when a registration in beneficiary form was made is nevertheless presumed to be valid and authorized as a matter of contract law.

A security, whether evidenced by certificate or account, is registered in beneficiary form when the registration includes a designation of a beneficiary to take the ownership at the death of the owner or the deaths of all multiple owners.

Registration in beneficiary form may be shown by the words "transfer on death" or the abbreviation "TOD," or by the words "pay on death" or the abbreviation "POD," after the name of the registered owner and before the name of a beneficiary.

The designation of a transfer on death beneficiary on a registration in beneficiary form has no effect on ownership until the owner's death. A registration of a security in beneficiary form may be canceled or changed at any time by the sole owner or all the then surviving owners without the consent of the beneficiary.

On death of a sole owner or the last to die of all multiple owners, ownership of securities registered in beneficiary form passes to the beneficiary or beneficiaries who survive all owners. On proof of death of all owners and compliance with any applicable requirements of the registering entity, a security registered in beneficiary form may be reregistered in the name of the beneficiary or beneficiaries who survive the death of all owners. Until division of the security after the death of all owners, multiple beneficiaries surviving the death of all owners hold their interests as tenants in common. If no beneficiary survives the death of all owners, the security belongs to the estate of the deceased sole owner or the estate of the last to die of all multiple owners.

§ 53-5-68. Duties Of Registering Entity; Implementation Of Registration; Applicability Of Code Section 53-5-67; Protective Effect.

(a) A registering entity is not required to offer or to accept a request for security registration in beneficiary form. If a registration in beneficiary form is offered by a registering entity, the owner requesting registration in beneficiary form assents to the protections given to the registering entity by this article.

(b) By accepting a request for registration of a security in beneficiary form, the registering entity agrees that the registration will be implemented on death of the deceased owner as provided in this article.

(c) A registering entity is discharged from all claims to a security by the estate, creditors, heirs, or devisees of a deceased owner if it registers a transfer of the security in accordance with Code Section 53-5-67 and does so in good faith reliance on the registration, on this article, and on information provided to it by affidavit of the personal representative of the deceased owner, or by the surviving beneficiary or by the surviving beneficiary's representatives, or other information available to the registering entity. The protections of this article do not extend to a reregistration or payment made after a registering entity has received written notice from any claimant to any interest in the security objecting to implementation of a registration in beneficiary form. No other notice or other information available to the registering entity affects its right to protection under this article.

(d) The protection provided by this article to the registering entity of a security does not affect the rights of beneficiaries in disputes between themselves and other claimants to ownership of the security transferred or its value or proceeds.

(a) A transfer on death resulting from a registration in beneficiary form is effective by reason of the contract regarding the registration between the owner and the registering entity and this article and is not testamentary.

(b) This article does not limit the rights of creditors of security owners against beneficiaries and other transferees under other laws of this state.

(a) A registering entity offering to accept registrations in beneficiary form may establish the terms and conditions under which it will receive requests for registrations in beneficiary form and for implementation of registrations in beneficiary form, including requests for cancellation of previously registered transfer on death beneficiary designations and requests for reregistration to effect a change of beneficiary. The terms and conditions so established may provide for proving death, avoiding or resolving any problems concerning fractional shares, designating primary and contingent beneficiaries, and substituting a named beneficiary's descendants to take in the place of the named beneficiary in the event of the beneficiary's death. Substitution may be indicated by appending to the name of the primary beneficiary the letters "LDPS," standing for lineal descendants per stirpes. This designation substitutes a deceased beneficiary's descendants who survive the owner for a beneficiary who fails to so survive, the descendants to be identified and to share in accordance with the law of the beneficiary's domicile at the owner's death governing inheritance by descendants of an intestate. Other forms of identifying beneficiaries who are to take on one or more contingencies and rules for providing proofs and assurances needed to satisfy reasonable concerns by registering entities regarding conditions and identities relevant to accurate implementation of registrations in beneficiary form may be contained in a registering entity's terms and conditions.

(b) The following are illustrations of registrations in beneficiary form which a registering entity may authorize:

(2) Multiple owners-sole beneficiary: John S. Brown Mary B. Brown JT TEN TOD John S. Brown, Jr.;

(3) Multiple owners-primary and secondary (substituted) beneficiaries: John S. Brown Mary B. Brown JT TEN TOD John S. Brown, Jr., SUB BENE Peter Q. Brown or John S. Brown Mary B. Brown JT TEN TOD John S. Brown, Jr., LDPS.

This article applies to registrations of securities in beneficiary form made before or after July 1, 1999, by decedents dying on or after July 1, 1999.

Any individual who is sui juris, regardless of citizenship or residency, is eligible to serve as a personal representative or temporary administrator of a decedent who dies domiciled in this state, subject to the requirements for qualification set forth in this chapter. Any other person is eligible to serve as a personal representative or temporary administrator of a decedent who dies domiciled in this state, subject to the requirements set forth in this chapter, provided the person is otherwise qualified to act as a fiduciary in this state.

Any person who, without authority of law, wrongfully intermeddles with or converts the personalty of a decedent whose estate is unrepresented shall be deemed an executor de son tort and as such shall be liable to the creditors and heirs or beneficiaries of the estate for double the value of the property so possessed and converted. Such executor shall not be allowed to set off any debt due the executor by the decedent or voluntarily paid by the executor out of the assets. If the executor dies, the executor's personal representative shall be liable in the same manner and to the same extent as would the executor were the executor still living.

An expression by the testator of a desire that the person carry into effect the testator's wishes shall amount to a nomination as executor.

(b) Unless adjudged unfit, nominated executors shall have the right to qualify in the order set out in the will.

(c) An individual who has not reached the age of majority may be nominated as an executor but may not qualify until reaching the age of majority.

(d) If the will names a person to fill a vacancy in the office of executor or provides a method of selecting a personal representative to fill the vacancy, any vacancy shall be filled or selection made as provided in the will.

(a) If the nominated executor does not qualify within 90 days after the order admitting the will to probate is entered or is proved to be dead or incapacitated or renounces the right to serve, the next nominated executor in the order set out in the will may qualify. If the next nominated executor fails to qualify within 90 days after the expiration of the time period by which the first nominated executor must qualify or is proved to be dead or incapacitated or renounces the right to serve, any nominated executor may qualify.

If no nominated executor appears to qualify within a reasonable time or if there is no other executor named in the will, the estate shall be deemed to be unrepresented.

(b) A nominated executor who fails to qualify within the time period set out in subsection (a) of this Code section is deemed to have declined the right to serve as executor; provided, however, that this declination does not preclude the nominated executor from qualifying to serve as executor or administrator with the will annexed at a later time.

A nominated executor may decline in writing the right to serve as executor, but this shall not preclude the nominated executor from qualifying at a later time to serve as executor or administrator with the will annexed to fill a vacancy.

Unless another nominated executor qualifies within the time provided in Code Section 53-6-11, the probate court shall appoint an administrator with the will annexed of a testate estate when:

(2) The nominated executor has not reached the age of majority, to serve until the disability ceases;

(a) For purposes of this Code section, a beneficiary who is capable of expressing a choice is one:

(1) Who has a present interest, including but not limited to a vested remainder interest but not including trust beneficiaries where there is a trustee; and

(2) Whose identity and whereabouts are known or may be determined by reasonable diligence.

(b) An administrator with the will annexed may be unanimously selected by the beneficiaries of the will who are capable of expressing a choice unless the sole beneficiary is the decedent's surviving spouse and an action for divorce or separate maintenance was pending between the decedent and the surviving spouse at the time of death. When no such unanimous selection is made, the probate court shall make the appointment that will best serve the interests of the estate, considering the following preferences:

(1) Any beneficiary or the trustee of any trust that is a beneficiary under the will; or

(2) That beneficiary's guardian or, if none, the person having custody of the beneficiary if the beneficiary is not sui juris;

(4) The personal representative of a deceased beneficiary receiving a present interest under the will.

(a) Every petition for letters of administration with the will annexed shall be made in accordance with the procedures set forth in Code Section 53-5-21 if the will has not yet been admitted to probate and shall include a prayer for issuance of letters of administration with the will annexed. The petition shall set forth the names, addresses, and ages or majority status of the beneficiaries who are capable of expressing a choice, as defined in subsection (a) of Code Section 53-6-14, and the circumstances giving rise to the need for an administrator with the will annexed. The petition shall be served on the beneficiaries of the will who are capable of expressing a choice in the manner described in Chapter 11 of this title. If the petition for letters of administration with the will annexed is based upon the expiration of a reasonable time for any nominated executor to qualify, any nominated executor who has failed to qualify shall also be served.

(b) If the will has been admitted to probate, the petition for letters of administration with the will annexed shall set forth the names, addresses, and ages or majority status of the beneficiaries who are capable of expressing a choice, as described in subsection (a) of Code Section 53-6-14, the date on which the will was admitted to probate, and the circumstances giving rise to the need for an administrator with the will annexed. The petition shall be served on the beneficiaries of the will and the executor, if any, of any deceased executor whose death created the vacancy in the manner described in Chapter 11 of this title.

(c) In the case of an estate partially administered and unrepresented because of the death of the previous executor, the judge shall determine whether the interest of the first estate and the persons interested in the first estate will be best served by the appointment of an administrator with the will annexed or the executor, if any, appointed under the will of the deceased previous executor.

§ 53-6-16. Oath Or Affirmation Of Executor And Administrator With Will Annexed.

(a) Every executor and every administrator with the will annexed, upon qualification, shall take and subscribe an oath or affirmation in substantially the following form:

"I do solemnly swear (or affirm) that this writing contains the true last will of _______________________, deceased, so far as I know or believe, and that I will well and truly execute the same in accordance with the laws of Georgia. So help me God."

(b) The oath or affirmation of an executor or administrator with the will annexed as provided in subsection (a) of this Code section may be subscribed before the judge or clerk of any probate court of this state. The probate court appointing the executor or administrator with the will annexed shall have the authority to grant a commission to a judge or clerk of any court of record of any other state to administer the oath or affirmation.

An administrator may be unanimously selected by all the heirs of a deceased intestate unless the sole heir is the decedent's surviving spouse and an action for divorce or separate maintenance was pending between the deceased intestate and the surviving spouse at the time of death. With respect to any heir who is not sui juris, consent may be given by the guardian of the individual. When no such unanimous selection is made, the probate court shall make the appointment that will best serve the interests of the estate, considering the following order of preferences:

(1) The surviving spouse, unless an action for divorce or separate maintenance was pending between the deceased intestate and the surviving spouse at the time of death;

(2) One or more other heirs of the intestate or the person selected by the majority in interest of them;

(a) Every petition for letters of administration shall be made to the probate court of the county of domicile of the decedent, or, if the decedent was not domiciled in this state, then in a county where the estate or some portion of it is located.

(b) The petition shall set forth the full name, the legal domicile, and the date of death of the decedent; the mailing address and place of domicile of the petitioner; the names, ages or majority status, and addresses of heirs, stating their relationship to the decedent; and, in the event full particulars are lacking, the reasons for any omission. The petition shall conclude with a prayer for issuance of letters of administration. If a prior personal representative has qualified and a copy of the original petition is attached, it is unnecessary for the new petition to repeat relevant and unchanged information from the original petition.

Notice of the petition for letters of administration shall be mailed by first-class mail to each heir with a known address at least 13 days prior to the date on or before which any objection is required to be filed. If there is any heir whose current address is unknown or any heir who is unknown, notice shall be published once each week for four weeks prior to the week which includes the date on or before which any objection must be filed.

Letters of administration may issue to any person selected as provided by Code Section 53-6-20, and a new citation need not be published if the administrator is someone other than the person named in the citation.

(a) Every administrator, upon qualification (which qualification may be done at any time if appointed at a regular term), shall take and subscribe an oath or affirmation in substantially the following form:

"I do solemnly swear (or affirm) that _______________________, deceased, died intestate so far as I know or believe, and that I will well and truly administer the estate in accordance with the laws of Georgia. So help me God."

(b) The oath or affirmation of an administrator as provided in subsection (a) of this Code section may be subscribed before the judge or clerk of any probate court of this state. The probate court appointing the administrator shall have the authority to grant a commission to a judge or clerk of any court of record of any state to administer the oath or affirmation.

(a) Personal representatives shall be compensated as specified in either the will or any written agreement entered into prior to the decedent's death or a written agreement signed by all the beneficiaries of a testate estate or all the heirs of an intestate estate. A written agreement between a testator and a personal representative shall be valid and binding upon the estate of the testator as fully and completely as if set forth in and made a part of the will.

(b) If the personal representative's compensation is not specified in the will or any separate written agreement, the personal representative for services rendered shall be entitled to compensation equal to:

(1) Two and one-half percent commission on all sums of money received by the personal representative on account of the estate, except on money loaned by and repaid to the personal representative, and 2 1/2 percent commission on all sums paid out by the personal representative, either for debts, legacies, or distributive shares;

(2) Ten percent commission on the amount of interest made if, during the course of administration, the personal representative shall receive interest on money loaned by the personal representative in that capacity and shall include the same on the return to the probate court so as to become chargeable therewith as a part of the corpus of the estate;

(3) Reasonable compensation, as determined in the discretion of the probate court and after such notice, if any, as the court shall direct, for the delivery over of property in kind, not exceeding 3 percent of the appraised value and, in cases where there has been no appraisal, not over 3 percent of the fair value as found by the judge, irrespective of whether delivery over in kind is made pursuant to proceedings for that purpose in the probate court and irrespective of whether the property, except money, is tangible or intangible, personal or real; and

(4) In the discretion of the probate court, compensation for working land for the benefit of the parties in interest in no case exceeding 10 percent of the annual income of the property so managed.

(c) Whenever any portion of the dividends, interest, or rents payable to a personal representative is required by law of the United States or other governmental unit to be withheld by the person paying the same for income tax purposes, the amount so withheld shall be deemed to have been collected by the personal representative.

(d) Unless the will or written agreement specifies otherwise, where some or all of the estate passes through the hands of several personal representatives by reason of the death, removal, or resignation of the first qualified personal representative, or otherwise, the estate shall not be subject to diminution by charges of commission of each successive personal representative holding and receiving in the same right but rather commissions for receiving the estate shall be paid to the first personal representative who receives the property for the benefit of the estate or that person's representative, and commissions for paying out shall be paid to the personal representative who actually distributes the fund, and no commissions shall be paid for handing over the fund to a successor personal representative. If there is more than one personal representative serving simultaneously, the division of the compensation allowed them shall be according to the services rendered by each.

(e) Unless the will or written agreement specifies otherwise, a personal representative is entitled to receive commissions on debts, legacies, and distributive shares paid to that personal representative in the same manner as commissions to which the personal representative would be entitled under the terms of the will or written agreement or applicable law on such items paid to others; provided, however, a personal representative shall not be entitled to any commissions for any sums paid to any personal representative of the estate as commissions or other compensation.

(f) Personal representatives who fail to make annual returns as required by law shall forfeit all commissions for transactions during the year within which no return is made unless the probate court, upon cause shown, shall by special order entered on the minutes relieve them from the forfeiture.

(g) A personal representative may renounce the right to all or any part of the compensation to which the personal representative is entitled under this Code section.

Personal representatives shall be allowed reasonable expenses incurred in the administration of the estate, including without limitation expenses for travel, the expenses and premiums incurred in securing a bond, and the expenses of counsel and other agents.

Such reasonable expenses shall be determined after such notice, if any, as the court shall direct.

(a) A personal representative may petition the probate court for compensation that is greater than that allowed under Code Section 53-6-60. Service of notice of the petition for extra compensation shall be made to all the heirs of an intestate decedent or to any affected beneficiaries under the will of a testate decedent.

Service shall be made in the manner described in Chapter 11 of this title and shall direct the parties served to file any written objections to the extra compensation with the probate court within ten days.

(b) After hearing any objection filed by the heirs or beneficiaries of the estate, the probate court shall allow such extra compensation as the court deems reasonable. The allowance of extra compensation shall be conclusive as to all parties in interest.

(c) If the amount of compensation that is specified in a testator's will is less than the amount allowed under Code Section 53-6-60, the personal representative may petition for greater compensation in the manner described in this Code section.

(a) Any executor who is a domiciliary of this state may receive compensation for services, as specified in this subsection, from a corporation or other business enterprise where the estate of the decedent owns an interest in the corporation or other business enterprise, provided that:

(1) The services provided by the executor to the corporation or other business enterprise are of a managerial, executive, or business advisory nature;

(3) The services are performed and the executor is paid pursuant to a contract executed by the executor and the corporation or business enterprise, which contract is approved by a majority of those members of the board of directors or other similar governing authority of the corporation or business enterprise who are not officers or employees of the executor and are not related to the executor and provided the contract is approved by the probate court of the county in which the administration proceeding is pending.

(b) Any executor receiving compensation from a corporation or other business enterprise for services to it as described in subsection (a) of this Code section shall not receive extra compensation in respect to such services as provided in Code Section 53-6-62; provided, however, that nothing in this Code section shall prohibit the receipt by the executor of extra compensation for services rendered in respect to other assets or matters involving the estate.

(c) Nothing in this Code section shall prohibit the receipt by executors of normal commissions and compensation for the usual services performed by executors pursuant to law or pursuant to any fee agreement executed by the testator.

(d) The purpose of this Code section is to enable additional compensation to be paid to executors for business management and advisory services to corporations and business enterprises pursuant to contract, without the necessity of petitioning for extra compensation pursuant to Code Section 53-6-62.

A temporary administrator may apply to the court for reasonable compensation after notice to interested parties in compliance with Chapter 11 of this title. The court shall award reasonable compensation to a temporary administrator. For good cause, including but not limited to services performed and compensation awarded to a temporary administrator, the court may reduce the compensation due the personal representative under other provisions of this article.

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