2020 Georgia Code
Title 53 - Wills, Trusts, and Administration of Estates
Chapter 5 - Probate
Article 3 - Solemn Form
§ 53-5-22. (For Effective Date, See note.) Service of Notice

1. Probate in solemn form requires service of notice on all the heirs of the testator and, if there is any other purported will of the testator for which probate proceedings are pending in this state, on all the beneficiaries under and propounders of such purported will. Service of notice of a petition for probate in solemn form shall be by personal service if the party resides in this state and is known and shall be served at least 30 days before probate is to be made, except that, if such service of notice is waived, the 30 day provision shall not apply.
2. For purposes of serving notice on beneficiaries under a purported will for which probate proceedings are pending in this state, notice shall be served on:
   1. Each beneficiary:
      1. Who has a present interest, including but not limited to a vested remainder interest but not including trust beneficiaries where there is a trustee; and
      2. Whose identity and whereabouts are known or may be determined by reasonable diligence;
   2. The duly acting conservator or guardian of each individual beneficiary with a present interest or power, other than a mere trust beneficiary, who is not sui juris; and
   3. Each trustee.

      Service of notice shall not be required in the case of a person whose interest, even though vested, cannot be possessed until the passage of time or the happening of a contingency. The probate court may, on the motion of any party in interest or on its own motion, modify the service of notice required in the case of numerous beneficiaries of the same or similar class where the value of each testamentary gift is, or appears to be, nominal. Upon the motion of any party in interest or upon its own motion, the court may determine whether the interest of any beneficiary required to be served with notice under this subsection is adequately represented, including any contingent interest of a beneficiary, and if such representation is found to be inadequate, the court may appoint a guardian ad litem to represent each beneficiary or order such other service of notice as may be appropriate to a beneficiary of a contingent interest. If a trustee named in the will indicates a refusal to represent the beneficiaries of the testamentary trust, the court may order that notice be served directly on the beneficiaries of the trust. The provisions of Code Section 53-12-8 shall be applicable to a trust beneficiary required to be served with notice or represented under this subsection.

3. Service of a notice of petition for probate in solemn form shall be in accordance with the provisions of Chapter 11 of this title and, if made personally or by mail, shall include a copy of the petition and of the will for which probate is sought. If service is to be made by publication, the published notice shall set forth the court, the time the order for service by publication was granted, the name of the decedent, the fact that a petition has been filed seeking the probate of the will of the decedent in solemn form, and the name of the petitioner who seeks letters testamentary or the continuance in force of any letters testamentary previously granted. The notice shall command all parties to whom it is directed to file objection, if there is any.

(Code 1981, §53-5-22, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 1997, p. 1352, § 10; Ga. L. 1998, p. 1586, § 17; Ga. L. 2002, p. 1316, § 3; Ga. L. 2020, p. 377, § 1-23/HB 865.)

- Subscribing witness's testimony, § 24-9-903.

- For article discussing methods of summary distribution and settlement of decedent's estate, see 6 Ga. L. Rev. 74 (1971). For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 313 (1997). For comment on Byrd v. Riggs, 209 Ga. 930, 76 S.E.2d 774 (1953), see 16 Ga. B.J. 338 (1954); 18 Ga. B.J. 211 (1955). For comment on the constitutionality of Ga. L. 1958, pp. 657, 658; as amended by Ga. L. Ex. Sess., 1964, pp. 16, 17, reducing the number of required witnesses to a will to two, in light of the constitutional provision that no law shall refer to more than one subject matter, see 1 Ga. St. B.J. 126 (1964).

This section replaces the Service and Notice provisions of former OCGA Section 53-3-13 and 53-3-14 with a reference to the provisions of new Chapter 11 (general provisions relating to filing petitions in the probate court). Subsection (c) also includes a new requirement that the service of the petition include a copy of the will for which probate is sought.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, §§ 113-602 and 113-607, and former O.C.G.A. §§ 53-3-13 and53-3-14 are included in the annotations for this Code section.

- See McKnight v. Boggs, 253 Ga. 537, 322 S.E.2d 283 (1984).

- Former O.C.G.A. § 53-3-13 required the propounder of any will to give notice to the propounders and beneficiaries of any other wills of the testator offered for probate in the same county. This duty of notice does not end on the date of the filing of the first will for probate. It is a duty which continues until a will is admitted to probate. Garner v. Harrison, 260 Ga. 866, 400 S.E.2d 925 (1991) (decided under former O.C.G.A. § 53-3-13).

Judgment of probate in solemn form, after due notice, is conclusive and is not subject to collateral attack in any other court. Rigby v. Powell, 233 Ga. 158, 210 S.E.2d 696 (1974), overruled on other grounds, Wilson v. Nichols, 253 Ga. 84, 316 S.E.2d 752 (1984) (decided under former Code 1933, § 113-602).

Will may be probated in solemn form and letters testamentary thereupon issue in vacation, provided all of the heirs at law are sui juris and shall acknowledge service of the petition and notice, and shall in such acknowledgment assent thereto. Miller v. Miller, 104 Ga. App. 224, 121 S.E.2d 340 (1961) (decided under former Code 1933, § 113-602).

- In the probate of a will in solemn form, the absence from the state, at the time of probate, of an heir at law who resided within the state, solely because of service in the armed forces of the United States, does not change his domicile or residence so as to authorize service on him of a notice of probate by publication. Foster v. Foster, 207 Ga. 519, 63 S.E.2d 318 (1951) (decided under former Code 1933, § 113-602).

- Notice to the husband of an application to prove a will in solemn form, when the wife is next of kin to the deceased, is not notice to her, so as to bar her in a subsequent application to caveat the will. Stone v. Green, 30 Ga. 340 (1860) (decided under former law).

- Legislature undoubtedly meant that before a propounder might correctly state that heirs were "unknown," the propounder must have exercised at least some reasonable diligence in ascertaining the heirs, and may not simply rely upon the propounder's personal knowledge without reasonable inquiry. Oakley v. Anderson, 235 Ga. 607, 221 S.E.2d 31 (1975) (decided under former Code 1933, § 113-607).

- In the probate of a will in solemn form, the absence from the state, at the time of probate, of an heir at law who resided within the state, solely because of service in the armed forces of the United States, does not change one's domicile or residence so as to authorize service on that person of a notice of probate by publication. Foster v. Foster, 207 Ga. 519, 63 S.E.2d 318 (1951) (decided under former Code 1933, § 113-607).

- Citation in a proceeding for probate in solemn form that tracked the language of subsection (c) of former O.C.G.A. § 53-3-14 and stated specifically that the recipient needed to appear before the court on a date certain was sufficient notice that the named date was the deadline for appearing in probate court or filing a written objection. Higginbotham v. Rice, 271 Ga. 262, 517 S.E.2d 784 (1999), reversing Rice v. Higginbotham, 235 Ga. App. 378, 508 S.E.2d 736 (1998) (decided under former O.C.G.A. § 53-3-14).

Cited in Heath v. Jones, 168 F.2d 460 (5th Cir. 1948); Byrd v. Riggs, 211 Ga. 493, 86 S.E.2d 285 (1955); Sutton v. Hutchinson, 226 Ga. 99, 172 S.E.2d 663 (1970); Dismuke v. Dismuke, 195 Ga. App. 613, 394 S.E.2d 371 (1990).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 113-607, are included in the annotations for this Code section.

Probate in solemn form required notice to all heirs at law under former Code 1933, § 113-602 and such notice should be personal if the party resided in the state, but may be made by publication upon proper order of court when such party resided outside the state or was unknown. 1954-56 Op. Att'y Gen. p. 916 (decided under former Code 1933, § 113-607).

RESEARCH REFERENCES

Am. Jur. 2d.

- 79 Am. Jur. 2d, Wills, § 735 et seq. 80 Am. Jur. 2d, Wills, §§ 808 et seq., 816, 9065 et seq., 920, 921.

- 95 C.J.S., Wills, §§ 447 et seq., 472, 473, 545 et seq., 557, 616, 800 et seq.

- Probate of will or proceedings subsequent thereto as affecting right to probate later codicil or will, and rights and remedies of parties thereunder, 107 A.L.R. 249; 157 A.L.R. 1351.

Probate of copy of lost will as precluding later contest of will under doctrine of res judicata, 55 A.L.R.3d 755.

Wills: challenge in collateral proceeding to decree admitting will to probate, on ground of fraud inducing complainant not to resist probate, 84 A.L.R.3d 1119.

Right to probate subsequently discovered will as affected by completed prior proceedings in intestate administration, 2 A.L.R.4th 1315.