2022 Georgia Code
Title 53 - Wills, Trusts, and Administration of Estates
Chapter 5 - Probate
Article 3 - Solemn Form
§ 53-5-22. 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.

History. 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.

The 2020 amendment, effective January 1, 2021, in subsection (a), in the first sentence, substituted “service of notice on” for “due notice to”, deleted a comma following “heirs of the testator”, and substituted “on all the beneficiaries under” for “then such notice shall also be given to the beneficiaries”, and, in the second sentence, substituted “shall be by personal service” for “shall be personal”, substituted “30 days” for “ten days”, and substituted “if such service of notice is waived, the 30 day provision” for “if waived, the ten-day provision”; and, in subsection (b), in the introductory language, substituted “serving notice on” for “giving notice to” and “served on” for “given to”, inserted “conservator or”’ in paragraph (b)(2), and, in the undesignated language at the end of subsection (b), substituted “Service of notice” for “Notice” in the first sentence, in the second and third sentences, inserted “the motion of any party in interest or on its own” preceding “motion” and “service of” preceding “notice”, substituted “served with notice” for “notified” in the third sentence, substituted “served directly on” for “given directly to” in the fourth sentence, and added the last sentence.

Cross references.

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

Law reviews.

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).

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).