2020 Georgia Code
Title 53 - Wills, Trusts, and Administration of Estates
Chapter 11 - Proceedings in Probate Court
§ 53-11-2. (For Effective Date, See note.) "Guardian" Defined; Persons Represented; Appointment; Successors; Guardian Named in Petitions

1. As used in this Code section, the term "guardian" means the guardian ad litem appointed by the probate court who may represent a single party or more than one party or a class of parties with common or nonadverse interests, including the estates of one or more deceased heirs that have no personal representative; provided, however, that the court may determine for the purpose of the particular proceeding that the natural guardian, if any, or the testamentary guardian, if any, or the duly constituted conservator of the property, if any, or the duly constituted guardian of the person, if any, has no conflict of interest and thus may represent for the purpose of the proceeding a party who is not sui juris, who is unborn, or who is unknown.
2. When a party to a proceeding in the probate court is not sui juris, is unborn, or is unknown, such party shall be represented in the proceeding by a guardian. When a party to a proceeding in the probate court is a deceased heir whose estate has no personal representative, such deceased heir's estate may be represented in the proceeding by a guardian. Service upon or notice to a guardian shall constitute service upon or notice to the party represented, and except as provided in subsection (a) of Code Section 15-9-17, no additional service upon or notice to such party shall be required. Waivers, acknowledgments, consents, answers, objections, or other documents executed by the guardian shall, except as otherwise provided in Code Section 15-9-17, be binding upon the party represented.
3. Whenever a guardian ad litem is appointed, the court may limit the appointment or may at any time for cause appoint a successor. Unless the appointment is limited by the court, the guardian ad litem first appointed with respect to any proceeding involving the administration of the estate shall continue to serve with respect to such proceeding on behalf of the party represented until a successor is appointed, the party represented becomes sui juris, or the court terminates the appointment.
4. 1. In every petition filed in the probate court, the petitioner shall specify the name of each party who requires a guardian and the name and address of any person who is acting as guardian of the party. A copy of the letters appointing the guardian shall be attached to the petition or the petition shall allege such facts as shall show the authority of such guardian to act.
   2. The authority of a guardian to act may be established under paragraph (1) of this subsection by showing:
      1. Compliance by a foreign guardian of a minor with the filing requirements of subsection (b) of Code Section 29-2-74 or of Code Section 29-2-76;
      2. Compliance by a foreign conservator of the property of a minor with the filing requirements of subsection (b) of Code Section 29-3-115 or of Code Section 29-3-117;
      3. Compliance by a foreign guardian of an adult with the filing requirements of subsection (b) of Code Section 29-4-95 or of Code Section 29-4-97;
      4. Compliance by a foreign conservator of the property of an adult with the filing requirements of subsection (b) of Code Section 29-5-135 or of Code Section 29-5-137; or
      5. The registration and recording of a guardianship order or conservatorship order from another state under Article 4 of Chapter 11 of Title 29.
   3. Notwithstanding the provisions of paragraphs (1) and (2) of this subsection, the probate court may take judicial notice of the issuance of the letters appointing such conservator or guardian, and of the authority of such conservator or guardian to act, in the manner provided by Chapter 2 of Title 24.

(Code 1981, §53-11-2, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 1997, p. 1352, § 27; Ga. L. 1998, p. 1586, § 44; Ga. L. 2019, p. 693, § 41/HB 70; Ga. L. 2020, p. 377, § 1-63/HB 865.)

- Appointment of guardians ad litem generally, § 9-11-17(c).

Guardians ad litem and appraisers for year's support in probate court proceedings, Uniform Rules for the Probate Courts, Rule 23.

- For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 313 (1997).

This section clarifies that, in all proceedings relating to testate or intestate estates or Year's Support, parties who are legally incapable of acting on behalf of themselves shall be represented by a guardian. The term "guardian" means a guardian ad litem appointed by the probate judge for the proceeding. However, the probate judge may determine that someone who is already acting as guardian (a natural guardian, guardian of the property, or guardian of the person) may represent the party in the proceeding if the interests of the guardian and the party are not in conflict. Some examples of cases where the interests of the guardian and the party represented may be in conflict include cases when the guardian is also a personal representative of the decedent, the propounder of any purported will of the decedent, an heir, a beneficiary under the will of the decedent, or other interested party or cases where the probate court finds for any reason that the interests of the guardian for purposes of a particular proceeding are not common and nonadverse to the interests of the party represented. This section does not abrogate any provision of Title 29, such as the provisions of Section 29-4-2(d) requiring the natural guardian to post bond in certain cases where a minor's claim arises under a personal injury lawsuit. All petitions filed in the probate court will include the names of those parties who require a guardian and will indicate the identity of any person who is already acting as guardian. A copy of the letters of guardianship or other evidence of authority should be attached to or included in the petition. However, the probate court may take judicial notice of these letters.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, § 3860, and former Code 1933, § 113-608, are included in the annotations for this Code section.

- Probate court properly reappointed an individual to act as guardian ad litem of unknown heirs in connection with a decedent's will and a declaratory judgment action commenced by a disqualified beneficiary, as there was nothing that prohibited such appointment, and the unknown heirs were entitled to representation pursuant to O.C.G.A. § 53-11-2(b). In re Estate of Robertson, 271 Ga. App. 785, 611 S.E.2d 680 (2005).

Trial court did not err in refusing to declare an order appointing a guardian ad litem void based on the appointment occurring before the probate court judge was recused from the case as only orders made by the probate court judge after the recusal were null and void and the probate court judge appointed the guardian ad litem before the recusal motion was filed. In re Estate of Sands-Kadel, 292 Ga. App. 343, 665 S.E.2d 46 (2008).

- Because the probate court erred in finding that a settlement agreement between heirs to their decedent parent's estate was enforceable, given that a disabled sibling's interests were not represented, and no evidence was presented that a non-disabled sibling assented to or participated in the agreement, the court erred in approving the agreement, warranting a finding that the agreement be set aside. Freeman v. Covington, 282 Ga. App. 113, 637 S.E.2d 815 (2006).

Cited in Summerour v. Fortson, 174 Ga. 862, 164 S.E. 809 (1932); Griffin v. Suber, 191 Ga. 269, 12 S.E.2d 621 (1940).

RESEARCH REFERENCES

Am. Jur. 2d.

- 20 Am. Jur. 2d, Courts, § 98. 39 Am. Jur. 2d, Guardian and Ward, § 13. 80 Am. Jur. 2d, Wills, § 986.

- 43 C.J.S., Infants, § 321 et seq. 95 C.J.S., Wills, §§ 536, 537.

- Factors considered in making election for incompetent to take under or against will, 3 A.L.R.3d 6.

Time within which election must be made for incompetent to take under or against will, 3 A.L.R.3d 119.