2021 Georgia Code
Title 53 - Wills, Trusts, and Administration of Estates
Chapter 4 - Wills
Article 6 - Construction of Will; Testamentary Gifts
§ 53-4-63. Payment of Debts of Testator and Expenses of Estate Administrator

1. Unless otherwise directed, the debts of the testator and expenses of administration of the estate shall be paid out of the residuum. Unless otherwise provided in the will, a residuary gift or any part thereof, including a residuary gift to a surviving spouse in lieu of year's support, shall be deemed a gift of the net residuum or part thereof remaining after all debts of the testator and expenses of administration of the estate, including taxes, have been paid.
2. If the residuum proves to be insufficient for the payment of the debts of the testator and the expenses of administration of the estate, then general testamentary gifts shall abate pro rata to make up the deficiency. If general testamentary gifts are insufficient, then demonstrative testamentary gifts shall abate in the same manner. If both general and demonstrative gifts are insufficient, then specific gifts shall abate in the same manner.
3. After the estate assets in the hands of the personal representative are exhausted, a creditor may proceed against each beneficiary for that beneficiary's pro rata share of the debts to the extent a testamentary gift has been distributed to that beneficiary.
4. Realty and personalty shall be equally liable for the payment of debts.
5. Unless otherwise expressly directed in the will, nothing in this Code section shall be deemed to limit any rights to reimbursement for federal estate taxes, generation-skipping transfer taxes, or any other taxes that may be available to personal representatives under federal law.

(Code 1981, §53-4-63, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 2020, p. 377, § 1-14/HB 865.)

The 2020 amendment, effective January 1, 2021, in subsection (a), inserted "and expenses of administration of the estate" in the first sentence, and in the second sentence, inserted "of the testator" and "of the estate"; in the first sentence in subsection (b), substituted "debts of the testator" for "testator's debts" and inserted "of the estate"; and substituted "hands of the personal representative" for "executor's hands" in subsection (c).

- 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 article surveying legislative and judicial developments in Georgia's will, trusts, and estate laws, see 31 Mercer L. Rev. 281 (1979). For article, "Tax Apportionment Problems under the Georgia Probate Code," see 8 Ga. St. B.J. 16 (2003).

RESEARCH REFERENCES

Am. Jur. 2d.

- 31 Am. Jur. 2d, Executors and Administrators, § 685. 80 Am. Jur. 2d, Wills, §§ 1485 et seq., 1499, 1510, 1526.

- 34 C.J.S., Executors and Administrators, § 501. 97 C.J.S., Wills, §§ 1720, 1728, 1729.

- What amounts to an ademption or abatement of a legacy of a business or professional practice, 13 A.L.R. 173; 16 A.L.R.2d 1404.

Preferences among general legacies as regards abatement, 34 A.L.R. 1247.

Gift by will of mixed residue of real and personal property as subjecting residuary realty to payment of pecuniary legacies, 42 A.L.R. 654.

Specific devises and specific legacies as subject to ratable contribution for the payment of debts, 42 A.L.R. 1519.

Legacy or devise to creditor of testator as satisfaction in whole or part of debt, 86 A.L.R. 6; 47 A.L.R.2d 1140.

Construction and effect of provisions of will regarding abatement of legacies or devises in event of insufficiency of assets to pay all in full, 101 A.L.R. 704.

Direction in will for payment of debts of testator, or for payment of specified debt, as affecting debts or debt barred by limitation, 109 A.L.R. 1441.

Preference as regards life interest created by will as carrying similar preference in respect of remainder interest, 117 A.L.R. 1339.

Law of domicil or of place of ancillary administration as governing rights and priorities of creditors of decedent in respect of assets in ancillary jurisdiction, 124 A.L.R. 1281.

Priority received by creditors as regards ancillary assets of receivership or decedent's estate as justification for reducing their claims or dividends upon distribution in the primary or domiciliary jurisdiction so as to effect ultimate equality among creditors as regards total assets, 127 A.L.R. 504.

Property over which the testator had power of appointment which is exercised by residuary clause, as available for payment of pecuniary legacies after exhaustion of testator's own property, 129 A.L.R. 826.

Right of retainer in respect of indebtedness of heir, legatee, or distributee, 164 A.L.R. 717.

Priority of surviving spouse who accepts provision of will in lieu of dower or other marital rights over other legatees and devisees and creditors, 2 A.L.R.2d 607.

Phrase in will, "subject to payment of debts," and the like, as charging particular devise or bequest with debts, in exoneration of property otherwise subject thereto, 2 A.L.R.2d 1310.

Right to intrench upon corpus, when income is insufficient, to pay stated sum which trust instrument directs to be paid periodically to beneficiary out of income, 67 A.L.R.2d 1393.

Right of devisee of real estate specifically devised but subject to mortgage to contribution or other relief from specific devisee of other property, 72 A.L.R.2d 383.

Liability for debts and expenses as between personalty generally bequeathed and realty passing by the residuary clause or left undisposed of, 74 A.L.R.2d 553.

Right of heir or devisee to have realty exonerated from lien thereon at expense of personal estate, 4 A.L.R.3d 1023.

Devise or bequest pursuant to testator's contractual obligation as subject to estate, succession, or inheritance tax, 59 A.L.R.3d 969.

Construction and effect of will provisions expressly relating to the burden of estate or inheritance taxes, 69 A.L.R.3d 122.

Construction and effect of will provisions not expressly mentioning payment of death taxes but relied on as affecting the burden of estate or inheritance taxes, 70 A.L.R.3d 630.

Liability for wrongful autopsy, 18 A.L.R.4th 858.

Proper disposition under will providing for allocation of express percentages or proportions amounting to more or less than whole of residuary estate, 35 A.L.R.4th 788.