2020 Georgia Code
Title 53 - Wills, Trusts, and Administration of Estates
Chapter 2 - Descent and Distribution
Article 4 - Dispensing With Administration
§ 53-2-41. Issuance of Citation and Order; Objections

1. Upon the filing of a petition that states that there are known creditors of the estate who are to be served, a citation shall be issued and any creditors of the estate shall be served as provided in Chapter 11 of this title.
2. If any creditor, whether the debt is due or not, objects to the granting of the order, the court shall refuse to grant an order finding that no administration is necessary so long as such objection is not withdrawn.
3. In the event no creditor files objection to the granting of the order or if all objections are withdrawn, the probate court shall ascertain the heirs of the decedent and whether they are all of age and suffering under no disability or are represented by a guardian or a personal representative. If the court finds that all the heirs have consented and that the estate of the decedent owes no debts or that all creditors have consented or withdrawn any objection, the court shall then enter an order in the proceedings finding that no administration is necessary. Should property described in the petition be located in a county other than the county in which the petition is filed, a certified copy of the proceedings, including any agreement filed pursuant to Code Section 53-2-40, and the order of the probate court thereon may be entered in the office of the clerk of the superior court of the county in which the property is located.
4. An order finding that no administration is necessary shall confirm the vesting of title to the decedent's property in the heirs in the amounts and portions described in Code Section 53-2-1, or, if different, in the agreement filed by the heirs in accordance with Code Section 53-2-40.
5. Property thereafter sold or encumbered by the heirs of the decedent to a purchaser or lender who acts in good faith reliance upon the order shall be discharged from all claims and rights of the creditors of the deceased owner, except such claims, liens, judgments, security deeds, mortgages, or encumbrances as have been filed for record in the manner required by law so as to constitute notice thereof at the time of such sale or encumbrance by the heirs.
6. Nothing in this chapter shall be deemed to apply to or adversely affect liens for taxes or liens arising from the giving or signing of the bond of a public official.

(Code 1981, §53-2-41, enacted by Ga. L. 1996, p. 504, § 10.)

- For article discussing methods of summary distribution and settlement of decedent's estate, see 6 Ga. L. Rev. 74 (1971).

This section carries over the paragraphs (b) through (e) of former OCGA Sec. 53-10-2 and Sec. 53-10-3. Paragraph (a) of OCGA Sec. 53-10-2 is now encompassed in Chapter 11 of this Title. The remaining paragraphs of former OCGA Sec. 53-10-2 have been modified to reflect that the heirs for whom a guardian or a personal representative has been appointed may consent to an order dispensing with administration and to clarify that the order dispensing with administration has the effect of vesting title in the heirs in accordance with the state's laws of intestate distribution or, if different, the agreement set forth by the heirs as a part of their petition.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under Ga. L. 1959, p. 111, § 1, and former O.C.G.A. § 53-10-2 are included in the annotations for this Code section.

Ordinary (now probate judge) is not required to make finding as to agreement for division or to incorporate any reference to it in the ordinary's order. Saturday v. Saturday, 113 Ga. App. 251, 147 S.E.2d 798 (1966) (decided under Ga. L. 1959, p. 111, § 1).

- Duty of an heir opposing a petition for an order dispensing with administration to file a counteraffidavit in opposition to a motion for summary judgment on the petition arises only after the movant has made a prima facie showing of entitlement to judgment. Echols v. Hudson, 189 Ga. App. 780, 377 S.E.2d 542 (1989) (decided under former O.C.G.A. § 53-10-2).

- Fact questions, precluding summary judgment on a petition for an order dispensing with administration, existed since the record showed only that there was an estate consisting of a checking account and unidentified household furnishings, that there were debts owed by the decedent, and that the heirs had not agreed amicably to a division of the assets. Echols v. Hudson, 189 Ga. App. 780, 377 S.E.2d 542 (1989) (decided under former O.C.G.A. § 53-10-2).

Cited in Michael v. Poss, 209 Ga. 559, 74 S.E.2d 742 (1953); Shadburn v. Tapp, 209 Ga. 887, 77 S.E.2d 7 (1953); Robbins v. Riales, 221 Ga. 225, 144 S.E.2d 80 (1965); Hayes v. Strickland, 112 Ga. App. 567, 145 S.E.2d 728 (1965); Babb v. Potts, 183 Ga. App. 785, 360 S.E.2d 44 (1987).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under Ga. L. 1959, p. 111, § 1, are included in the annotations for this Code section.

Taxes are debts for purposes of this statute. 1971 Op. Att'y Gen. No. U71-58 (decided under Ga. L. 1959, p. 111, § 1).

RESEARCH REFERENCES

Am. Jur. 2d.

- 31 Am. Jur. 2d, Executors and Administrators, §§ 1, 11 et seq., 21, 48.

- 26B C.J.S., Descent and Distribution, §§ 74, 75, 78, 81, 112 et seq. 33 C.J.S., Executors and Administrators, §§ 7, 8, 11, 13.