2020 Georgia Code
Title 53 - Wills, Trusts, and Administration of Estates
Chapter 4 - Wills
Article 6 - Construction of Will; Testamentary Gifts
§ 53-4-61. Time at Which General or Demonstrative Testamentary Gift Bears Interest

1. A general or demonstrative testamentary gift usually bears interest at the legal rate after the expiration of 12 months from the death of the testator; provided, however, that when a general or demonstrative testamentary gift is to be paid at a later time or upon a later event, it bears no interest until such time or event.
2. The general rule described in subsection (a) of this Code section yields to the equity and necessity of a particular case if the condition of the estate as to the payment of debts and testamentary gifts is doubtful or if the fund out of which the testamentary gift is to be paid is unavailable for all the charges made upon it or if any other equitable circumstance intervenes.

(Code 1981, §53-4-61, enacted by Ga. L. 1996, p. 504, § 10.)

- For article, "The Time Gap in Wills: Shifting Assets and Shrinking Estates - Obsolescence and Testamentary Planning in Georgia," see 6 Ga. L. Rev. 649 (1972). For note, "Determining Principal and Income Allocation in Georgia Trusts," see 8 Ga. St. B.J. 564 (1972).

This section carries over former OCGA Sec. 53-2-97 with modifications in the language, including the addition of language relating to demonstrative testamentary gifts. The legal rate of interest in the state of Georgia is set out in Code Sec. 7-4-2. Former OCGA Sec. 53-2-98 (defining "executory devise") is repealed as the concepts in this section are covered in recent amendments to OCGA Title 44.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 113-810, are included in the annotations for this Code section.

As a general rule, specific legacies of a productive nature bear interest from the death of the testator. Beal v. Crafton, 5 Ga. 301 (1848) (decided under former law).

Legacy of $4,000.00 to be paid in bonds is not a legacy that bears interest from the testator's death. Downing v. Bain, 24 Ga. 372 (1858) (decided under former law).

When the testator fixes by the testator's will the date on which a general legacy is to be paid, it bears interest from that date. DuBose v. Box, 246 Ga. 660, 273 S.E.2d 101 (1980) (decided under former Code 1933, § 113-810).

When the testator makes a gift of the income on the legacy, and neither the legacy nor the income therefrom is delivered to the beneficiary within the time limits specified in the will, in order to be made whole, the beneficiary is entitled to interest on the income during the period the beneficiary should have been, but was not, receiving such income. DuBose v. Box, 246 Ga. 660, 273 S.E.2d 101 (1980) (decided under former Code 1933, § 113-810).

When the testator is a parent of an infant legatee, or is in loco parentis, the legacy bears interest from the death of the testator, whether the time of payment is postponed or not, unless there is another provision in the will for maintenance of the child. DuBose v. Box, 246 Ga. 660, 273 S.E.2d 101 (1980) (decided under former Code 1933, § 113-810).

- As an estate had sufficient funds to pay a bequest to an appellee, under O.C.G.A. § 53-4-61(b)(3), the probate court's decision that "other equitable circumstances" did not justify a decision not to award appellee prejudgment interest was left to the court's sound equitable discretion, and the appellate court found no manifest abuse of that discretion. In re Estate of Barr, 278 Ga. App. 837, 630 S.E.2d 135 (2006).

- In determining the prejudgment interest to be added to a testamentary gift, the operative statute in a probate case is the more specific statute, O.C.G.A. § 53-4-61, rather than the more general one, O.C.G.A. § 7-4-15. In re Estate of Barr, 278 Ga. App. 837, 630 S.E.2d 135 (2006).

RESEARCH REFERENCES

Am. Jur. 2d.

- 80 Am. Jur. 2d, Wills, § 1358.

- 97 C.J.S., Wills, § 2002 et seq.

- Time at which interest is payable under will or contract providing for payment of interest, 10 A.L.R. 997.

Right to interest on legacy as affected by contest of will, 75 A.L.R. 179.