2020 Georgia Code
Title 53 - Wills, Trusts, and Administration of Estates
Chapter 3 - Year's Support
§ 53-3-6. (For Effective Date, See note.) Issuance of Citation and Publication of Notice; Mailing of Petition to Tax Commissioner

1. As used in this Code section, the term "interested persons" means the decedent's children, spouse, other heirs, beneficiaries, and creditors and any others having a property right in or claim against the estate of the decedent that may be affected by the year's support proceedings.
2. Upon the filing of the petition, the probate court shall issue a citation and publish a notice in the official newspaper of the county in which the petition is made once a week for four weeks, citing all interested persons to show cause by a date certain why the petition for year's support should not be granted.
3. 1. If there is a personal representative of the decedent's estate, then, in addition to the issuance of citation and publication of notice required by subsection (b) of this Code section, the probate court shall cause a copy of the citation to be served upon the personal representative of the decedent's estate. The personal representative shall be served not fewer than 30 days prior to the date and time for objections to be filed shown in the citation.
   2. If there is no personal representative of the decedent's estate, then, in addition to the issuance of citation and publication of notice required by subsection (b) of this Code section, the petitioner or the attorney for the petitioner shall file with the probate court an affidavit, upon oath, showing the name, last known address, and age if less than age 18 of each interested person and stating that the petitioner or the attorney for the petitioner has listed all known interested persons and has made reasonable inquiry to ascertain the names, last known addresses, and ages of all interested persons. The probate court shall serve by first-class mail a copy of the citation on each interested person shown on the affidavit not fewer than 30 days prior to the date and time for objections to be filed shown in the citation.
   3. If the sole personal representative of the decedent's estate and the petitioner or the guardian of the petitioner are the same person, then paragraph (2) of this subsection shall govern as if the decedent's estate had no personal representative.
4. The probate court shall serve by first-class or interoffice mail, as applicable, a copy of the petition within five days of its filing on the tax commissioner or tax collector of any county in this state in which real property proposed to be set apart as year's support is located.

(Code 1981, §53-3-6, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 1998, p. 1586, § 14; Ga. L. 2020, p. 377, § 1-7/HB 865.)

- Pursuant to Code Section 28-9-5, in 1996, the second enacted version of subsection (c) was redesignated as subsection (d).

- For article discussing decisions involving the year's support provision of the Georgia Code, see 3 Ga. St. B.J. 427 (1967). For article surveying wills, trusts, and administration of estates, see 34 Mercer L. Rev. 323 (1982).

This section carries forward the provisions of former OCGA Sec. 53-5-8 that relate to the filing of the petition, the mailing of a copy of the petition to the tax commissioner, and the notice given to the personal representative of the estate and interested persons. Provisions relating to the actual award of year's support appear in Section 53-3-7.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1882, § 2573, former Civil Code 1895, § 3467, former Civil Code 1910, § 4043, former Code 1933, §§ 113-1005, 113-1005.1, 113-1005.2, and 113-1005.3, and former O.C.G.A. § 53-5-9 are included in the annotations for this Code section.

- In a probate matter, a trial court erred by dismissing an executor's objection to the setting aside of certain real property as a year's support in favor of an estate as the executor had filed an objection within 15 days of the default order amending the year's support order, pursuant to O.C.G.A. § 9-11-55(a), and by paying costs. The provisions of § 9-11-55(a) relating to the opening of default judgments as a matter of right within 15 days of default applied to a year's support proceedings in probate court. In re Estate of Ehlers, 289 Ga. App. 14, 656 S.E.2d 169 (2007).

Probate court erred by allowing the objections of a bank and a decedent's parents solely on the basis of adverse title and by denying a year's support to the widow when the widow failed to meet the resulting burden of proof because the probate court lacked the jurisdiction under Ga. Const. 1983, Art. VI, Sec. III, Para. I and O.C.G.A. § 15-9-30 to determine that the relevant money-market account and real property were not part of the estate; despite the jurisdictional limitation and the lack of an appropriate objection, the probate court proceeded to conduct a hearing as to the amount necessary for the widow's support, thereby inappropriately placing upon the widow a burden of proof that was contrary to O.C.G.A. § 53-3-7(a) and otherwise lacking in the absence of the jurisdictionally defective objections to the petition. In re Mahmoodzadeh, 314 Ga. App. 383, 724 S.E.2d 797 (2012).

- After the executor of a decedent's will was given notice of a widow's application for year's support, due process requirements were satisfied. Ingram v. Ruff, 236 Ga. App. 309, 511 S.E.2d 549 (1999).

- Conformed copy of a lost will was properly admitted into evidence, notwithstanding that the copy did not bear signatures of either the testator or the witnesses, especially as the attorney who prepared and witnessed the will testified that the copy was the same as the executed original. Smith v. Srinivasa, 269 Ga. 736, 506 S.E.2d 111 (1998).

- Presumption of revocation was properly found to have been rebutted since (1) the attorney who prepared the will kept in touch with the testator until shortly before the testator's death, and the testator never mentioned changing or revoking the testator's will, and (2) just a month before the testator's death, the testator affirmed to the testator's daughter that the testator wished certain property to be disposed of as stated in the will and never indicated any desire to revoke or change the testator's will. Smith v. Srinivasa, 269 Ga. 736, 506 S.E.2d 111 (1998).

- Provision as to time within which appraisers may make their return is directory; and if they should fail to make their return within the statutory period, the ordinary (now probate judge) could compel them to act, or appoint new appraisers. Goss v. Greenaway, 70 Ga. 130 (1883) (decided under former Code 1882, § 2573); Whatley v. Watters, 136 Ga. 701, 71 S.E. 1103 (1911);(decided under former Civil Code 1910, § 4043).

After the ordinary (now probate judge) receives a belated return and cites interested parties, by publication as prescribed by law, to show cause why the return should not be approved and made the judgment of the court, and such return is duly approved, it is too late for a creditor to object that the return was not made within 30 days of the appointment of the appraisers. Goss v. Greenaway, 70 Ga. 130 (1883) (decided under former Code 1882, § 2573); Whatley v. Watters, 136 Ga. 701, 71 S.E. 1103 (1911);(decided under former Civil Code 1910, § 4043).

Widow's right to a year's support is not affected by the appraisers' dereliction of duty for which she is not responsible. Goss v. Greenaway, 70 Ga. 130 (1883) (decided under former Code 1882, § 2573); Whatley v. Watters, 136 Ga. 701, 71 S.E. 1103 (1911);(decided under former Civil Code 1910, § 4043).

- Widow's application for a year's support was not void merely because the list of interested persons may have been incomplete. Scott v. Grant, 227 Ga. App. 1, 487 S.E.2d 627 (1997) (decided under former O.C.G.A. § 53-5-8).

- Filing an application for year's support without proper service does not toll the three-year limitation period of former O.C.G.A.53-5-2(d) for year's support proceedings. In re Estate of Reece, 243 Ga. App. 173, 532 S.E.2d 726 (2000) (decided under former O.C.G.A. § 53-5-8).

Cited in Mathews v. Rountree, 123 Ga. 327, 51 S.E. 423 (1905); Foster v. Turnbull, 126 Ga. 654, 55 S.E. 925 (1906); Winn v. Lunsford, 130 Ga. 436, 61 S.E. 9 (1908); Young v. Anderson, 19 Ga. App. 551, 91 S.E. 900 (1917); Beddingfield v. Old Nat'l Bank & Trust Co., 175 Ga. 172, 165 S.E. 61 (1932); Rooke v. Day, 46 Ga. App. 379, 167 S.E. 762 (1932); Shingler v. Furst, 52 Ga. App. 39, 182 S.E. 72 (1935); Smith v. Brogan, 207 Ga. 642, 63 S.E.2d 647 (1951); Sanders v. Fulton County, 111 Ga. App. 434, 142 S.E.2d 293 (1965); Outlaw v. Outlaw, 121 Ga. App. 284, 173 S.E.2d 459 (1970); Strickland v. Trust Co., 230 Ga. 714, 198 S.E.2d 668 (1973); Allan v. Allan, 236 Ga. 199, 223 S.E.2d 445 (1976); Tribble v. Knight, 238 Ga. 84, 231 S.E.2d 68 (1976); Sudderth v. Bailey, 239 Ga. 385, 236 S.E.2d 823 (1977); Richards v. Wadsworth, 230 Ga. App. 421, 496 S.E.2d 535 (1998).

RESEARCH REFERENCES

Am. Jur. 2d.

- 31 Am. Jur. 2d, Executors and Administrators, §§ 488 et seq., 717.

- 34 C.J.S., Executors and Administrators, § 472.

- Conclusiveness of statement or decision of accountant or similar third person under contract between others requiring property to be valued by him, 50 A.L.R.2d 1268.