2020 Georgia Code
Title 53 - Wills, Trusts, and Administration of Estates
Chapter 4 - Wills
Article 1 - General Provisions
§ 53-4-2. When Will Takes Effect

Universal Citation: GA Code § 53-4-2 (2020)

A will shall take effect instantly upon the death of the testator however long probate may be postponed.

(Code 1981, §53-4-2, enacted by Ga. L. 1996, p. 504, § 10.)

Law reviews.

- For annual survey of law of wills, trusts, guardianships, and fiduciary administration, see 56 Mercer L. Rev. 457 (2004). For comment on Jenkins v. United States, 296 F. Supp. 203 (M.D. Ga. 1968), see 3 Ga. L. Rev. 766 (1969).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 113-105, are included in the annotations for this Code section.

Application of pre-1998 probate code.

- Trial court did not err when the court applied the law in place before the 1998 probate code was adopted to determine whether a husband and wife had a contract not to revoke their joint and mutual will because the issue was not the propriety of the devises in the will but whether the husband and wife had a contract not to revoke the will; the 1998 probate code only applies to contracts entered into on or after January 1, 1998, so it would not apply to any contract allegedly made in 1980. Davis v. Parris, 289 Ga. 201, 710 S.E.2d 757 (2011).

Statute did not mean that an unprobated will is operative.

- Only after a will is probated will rights in property be fixed retrospectively with reference to the law and factual circumstances existing at the time of the testator's death. Woodall v. Pharr, 119 Ga. App. 692, 168 S.E.2d 645 (1969), aff'd, 226 Ga. 1, 172 S.E.2d 404 (1970) (decided under former Code 1933, § 113-105).

It is necessary to probate a will before the will can be recognized as an instrument affecting rights in property. Woodall v. Pharr, 119 Ga. App. 692, 168 S.E.2d 645 (1969), aff'd, 226 Ga. 1, 172 S.E.2d 404 (1970) (decided under former Code 1933, § 113-105).

Will is to be taken as speaking from the time of the death of the testator. Moore v. Segars, 192 Ga. 190, 14 S.E.2d 752 (1941) (decided under former Code 1933, § 113-105).

To take effect a will not only must be a validly executed instrument disposing of the testator's property at the testator's death, but it must remain so right up to its effective date, the testator's death. Lawson v. Hurt, 217 Ga. 827, 125 S.E.2d 480 (1962) (decided under former Code 1933, § 113-105).

If futurity is annexed to the substance of the gift, the vesting is suspended; but if it relates to the time of payment only, the title vests instantly upon the death of the testator. Lassiter v. Bank of Dawson, 191 Ga. 208, 11 S.E.2d 910 (1940) (decided under former Code 1933, § 113-105).

Cited in Parks v. Gresham, 185 Ga. 470, 195 S.E. 728 (1938); Fitzgerald v. Morgan, 193 Ga. 802, 20 S.E.2d 73 (1942); Nixon v. Nixon, 194 Ga. 301, 21 S.E.2d 702 (1942); Heath v. Jones, 168 F.2d 460 (5th Cir. 1948); Cummings v. Cummings, 89 Ga. App. 529, 80 S.E.2d 204 (1954); Jenkins v. United States, 428 F.2d 538 (5th Cir. 1970); Mitchell v. Mitchell, 279 Ga. 282, 612 S.E.2d 274 (2005).

RESEARCH REFERENCES

ALR.

- Governing law of will as affected by change of domicil after its execution, 57 A.L.R. 229.

Time as of which members of class described as testator's "heirs," "next of kin," "relations," etc., to whom a future gift is made, are to be ascertained, 169 A.L.R. 207.

Legal status of posthumously conceived child of decedent, 17 A.L.R.6th 593.

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