2021 Georgia Code
Title 53 - Wills, Trusts, and Administration of Estates
Chapter 5 - Probate
Article 3 - Solemn Form
§ 53-5-21. Procedure

1. A will may be proved in solemn form after service of notice upon the persons required to be served, upon the testimony of all the witnesses in life and within the jurisdiction of the court, or by proof of their signatures and that of the testator as provided in Code Section 53-5-23; provided, however, that the testimony of only one witness shall be required to prove the will in solemn form if no caveat is filed. If a will is self-proved, compliance with signature requirements and other requirements of execution is presumed subject to rebuttal without the necessity of the testimony of any witness upon filing the will and affidavit annexed or attached thereto.
2. The petition to probate a will in solemn form shall set forth the full name, the place of domicile, and the date of death of the testator; the mailing address of the petitioner; the names, ages or majority status, and addresses of all the heirs, stating each such heir's relationship to the testator; and whether, to the knowledge of the petitioner, any other proceedings with respect to the probate of another purported will of the testator are pending in this state and, if so, the names and addresses of the propounders and the names, addresses, and ages or majority status of the beneficiaries under the other purported will. If a testamentary guardian is being appointed in accordance with subsection (b) of Code Section 29-2-4, the names and mailing addresses of any persons required to be served with notice pursuant to such Code section shall be provided by the petitioner. In the event full particulars are lacking, the petition shall state the reasons for any omission. The petition shall conclude with a prayer for issuance of letters testamentary. If all of the heirs acknowledge service of the petition and notice and shall in their acknowledgment assent thereto, and if there are no other proceedings pending in this state with respect to the probate of another purported will of the decedent, the will may be probated and letters testamentary thereupon may issue without further delay; provided, however, that letters of guardianship shall only be issued in accordance with Code Section 29-2-4.

(Code 1981, §53-5-21, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 2014, p. 780, § 4-2/SB 364; Ga. L. 2020, p. 377, § 1-22/HB 865.)

The 2020 amendment, effective January 1, 2021, in subsection (a), substituted "service of notice upon the persons required to be served" for "due notice" and substituted "Code Section 53-5-23; provided, however, that the testimony" for "Code Section 53-5-23. The testimony"; and substituted "all the heirs, stating each such heir's relationship" for "the surviving spouse and of all the other heirs, stating their relationship" in subsection (b).

- 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 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).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 113-602, 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 resides in the state, but may be made by publication upon proper order of court when such party resided outside the state or was unknown under former Code 1933, § 43-5-21. 1954-56 Op. Att'y Gen. p. 916 (decided under former Code 1933, § 113-602).

RESEARCH REFERENCES

Am. Jur. 2d.

- 79 Am. Jur. 2d, Wills, § 735 et seq. 80 Am. Jur. 2d, Wills, §§ 808 et seq., 816, 906 et seq., 920, 921.

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