William J. Self, II, Judge
Probate Court of Bibb County
On January 1, 1998, the newly revised Title 53 (Wills, Trusts and Administration of Estates) of the Georgia Code will take effect. Many of those who regularly practice in Probate Courts have already attended CLE seminars on the new Title or have otherwise studied its provisions. For the benefit of the general bar, I want to highlight the major changes to Title 53, in hopes that we can all have at least a basic familiarity with its provisions and its effect on the practice of probate law.
First, the good news is that the revised Title does NOT drastically change the Georgia laws on the administration of estates of decedents nor dramatically change the practice of probate law. The better news is that the revised Title is better organized, generally easier to understand and follow, and contains more modern terminology. The best news, I suppose (at least for the practitioners), is that much of probate practice will continue to be by the use of standard forms in standardized proceedings. There are substantive changes in the law, and every practitioner must be aware of them, but there is no cause for trembling fear!
I must compliment and congratulate the Probate Code Revision Committee, on which our own Albert Reichert, Jr. served a major role. Though it may seem minimized by this brief summary, the Committee worked long and hard over some three years, pouring over every word of every section of the old Title and then carefully reviewing their "final product." The Act was passed during the 1996 session of the Legislature, and corrective and other amendments were made during the 1997 session. I have in my office a 20-page outline of the major changes to Title 53, for those of you who may want or need more than highlights, which is all I can include here.
The organization of the Title has been changed, and one should first look at the new table of chapters at the beginning of the Title. For the first time, there is a general definitions section (§53-1-2) for the terms used in the revised chapters. Several are particularly worthy of note here. The old terms "devisee and legatee" are replaced by the generic term "beneficiary," and "devise and legacy" are replaced by "testamentary gift." "Lineal descendants", a redundancy, is replaced by "descendants." The encompassing term "personal representative" will include executors, administrators (including with will annexed), and county administrators, but will NOT include temporary administrators. A new term "nominated executor" will distinguish one named in a will to serve as executor from one who has "qualified," a new term to define any personal representative who has taken the oath, been issued letters, and posted any required bond.
Chapter 2, "Intestacy", contains several changes to the current rules of inheritance which should be noted by all attorneys. First, a surviving spouse's intestate share is increased to one-third (from one-fourth), so that a surviving spouse takes at least 1/3 of the estate no matter how many children the decedent has. Second, parents of a decedent having no descendants will now inherit in preference to and ahead of (instead of equally with) siblings. Third, any descendants of nieces and nephews will take, per stirpes, in the third degree of inheritance (current law extends only to great-nieces and great-nephews). For purposes of inheritance, a "posthumous child" must be born within ten months of the decedent's death and survive birth by 120 hours. New §53-2-5 clarifies that the rules of inheritance by, from or through biological children apply equally to those conceived by artificial insemination and presumed legitimate under §19-7-21, and §53-2-2 clarifies inheritance by, from or through adopted children.
New §53-2-7 provides that title to both real and personal property of a decedent vests in an administrator upon appointment; title to real property no longer immediately vests in the heirs at law, as under current law. Title to real and personal property vests in the heirs at law if no administrator is appointed within five years of the decedent's death or in accordance with an Order Declaring No Administration Necessary upon its entry of record. Escheat is moved from Title 44 to Title 53, which will now provide for escheat after four years, instead of five.
Year's Support remains basically the same, with minor modifications. There is no longer a minimum award (the old $1600 figure); the application must be filed within 24 months of death (instead of 3 years under current law); and there is no longer a provision for subsequent awards. There is clarification that separate awards may be made to spouses and children.
The provisions on wills remain generally the same, though much of the outdated language has been deleted. All provisions dealing with nuncupative wills have been repealed. The language requiring "close scrutiny" of a will which excludes a spouse or children was eliminated as being unnecessary; the elimination is not meant to signal a change in the law or policy in Georgia. The language dealing with testamentary capacity is modernized. These changes, too, are not meant to change the standard for determining capacity but merely to eliminate language which is outmoded and illustrative only. The provisions on execution and attestation have, likewise, been modernized. There are now clearer provisions on "joint wills" and "mutual wills"; there is no presumption against the right to revoke (must be stated or shown), and revocation of one will not revoke the other. The doctrine of dependent relative revocation is supplemented by extensive new provisions on revocation and revival after revocation. A new provision provides that divorce or annulment does NOT revoke an existing will but rather results in the former spouse being treated as having predeceased the testator (without application of the anti-lapse statute to descendants of the spouse but not the testator).
Probate of Wills is both clarified and modified in several aspects. Jurisdiction will now clearly be in the county of "domicile" ("residency" will not matter). Under the new law, a will shall NOT be offered for probate AFTER five years from the latest to occur of (1) the filing of a petition for the appointment of a personal representative, (2) the filing of a petition for year's support, or (3) the filing of a petition for no administration necessary (the first "statute of limitations" on probate of wills). If no such petition is filed, there is no limitation on probate. There is a requirement under the new law that service of a petition to probate must include a copy of the proffered will. There are new provisions concerning probate of wills of decedents domiciled outside Georgia, with distinctions between "foreign wills" and "out-of-state wills."
Chapters 6, 7 and 8 also contain several new provisions of note. A nominated executor is required to qualify within 90 days of the order admitting the will to probate (or be deemed to have declined the right to serve). Personal representatives need not be residents of Georgia or citizens of the United States. Courts may appoint more than one county administrator, and specific authority is given to appoint a county administrator solely for the purpose of commencing or continuing a lawsuit against the estate, in which case the court may set compensation and may grant relief from the normal liabilities and duties. Personal representatives who are required to file Inventories or Returns are required to provide copies of same to the heirs or beneficiaries. Minor changes have been made in the priority of claims against an estate, most notably that last illness expenses are no longer on par with the funeral expenses and are after the expenses of administration. The "prudent person" standard for investments by personal representatives is re-instated in lieu of the "prudent trustee" standard, and the "legal list" of investments will continue to offer the "safe harbor" for personal representatives.
The provisions dealing with administration of estates of persons believed dead and conservation of the estates of missing persons are clarified in new Chapter 9, and the Uniform Simultaneous death Act is carried forward, in tact, in Chapter 10.
Finally, there is a new Chapter 11, entitled "General Provisions Relating to Probate Court Proceedings regarding Testator's Estates, Intestate Estates, and Year's Support," which has no counterpart under current law. Its purpose is to consolidate in one place in the probate code the general rules relating to procedures. In other words, unless there is a contrary provision, Chapter 11 establishes the procedures for filing, service, publication, attestation, waivers and consents, notarization, appointment of guardians-ad-litem (now called simply "guardians"), time constraints, etc.
Fulton Probate Judge Floyd Propst, Chair of the Forms Committee of the Council of Probate Judges, advises me that his Committee is working hard to modify all Georgia Probate Court Standard Forms presently existing to comply with the new Title and to create such new standard forms as might be appropriate in sufficient time to hopefully assure approval by the Supreme Court before the effective date of the new law. He further assures me that, as is the case with the current forms, all new and modified standard forms will be so designed that compliance with the instructions and full completion of the standard forms will result in compliance with the procedural requirements under the new Title.