Probate, trust, guardianship and inheritance litigation
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Key 2021 Updates To the Georgia Probate Code

2021 welcomed several updates and changes to the Georgia Probate Code and other codes that impact the probate courts. A summary of the key 2021 updates that impact practice in Georgia probate courts are below.

Georgia Probate Court Jurisdiction To Hear Trust Cases

An important 2021 change is the jurisdiction of the Georgia probate courts to hear many cases involving trusts, which often go hand in hand with cases involving wills.  See Georgia Code § 15-9-127.

Writings in Existence and Personal Property Designation

Two new Code sections were added to the Georgia Probate Code’s general provisions regarding wills.

The first, Georgia Probate Code § 53-4-4, allows the incorporation of extrinsic documents into a will by reference.

The second, Georgia Probate Code § 53-4-5, provides a new option for a testator to designate how personal property should be handled.  Georgia law now allows for a separate list to be created that identifies the disposition of personal property.  The will must mention that the list exists.

Deadline To Offer a Will For Probate

The Georgia Probate Code has also been updated for 2021 to change the deadline applicable to offering a will for probate.  Under new Georgia Probate Code § 53-5-3, a will must be offered for Georgia probate within five years from the earlier of:

(1) The latest date on which a petition is filed for the appointment of a personal representative of the decedent’s estate, an order that no administration is necessary on the decedent’s estate, or the probate of a different will; or

(2) The date of entry of a final order granting any petition of the sort described in paragraph (1) of this subsection that remains in continuing force and effect.

The term “will” includes a codicil.

Payment of Estate Administration Expenses

Georgia Probate Code Section 53-4-63 related to payment of debts of the testator was updated for 2021 to include that expenses of administration of the estate shall be paid out of the residuum.

Prior to the 2021 update, the section just included the “debts of the testator.”

In Terrorem Clauses

Georgia Probate Code § 53-4-68 was also updated relating to in terrorem clauses in Georgia wills, and now includes the following provision:

(c) A condition in terrorem shall not be enforceable against an interested person for:

(1) Bringing an action for interpretation or enforcement of a will;

(2) Bringing an action for an accounting, for removal, or for other relief against a personal representative; or

(3) Entering into a settlement agreement.

Six Year Time Limit On Claims

Section 9-3-36 of the Georgia Civil Practice Code was added, and governs the absolute deadline to assert claims arising before a decedent’s death:

(a) In no event may claims against a decedent’s estate that arose before the death of the decedent be brought more than six years after the date of the decedent’s death.

(b) Subsection (a) of this Code section is intended to create a six-year statute of ultimate repose and abrogation.

(c) Nothing in this Code section shall be construed as placing a limitation on the time for commencing a proceeding to enforce any mortgage, pledge, or other lien upon property owned by a decedent immediately prior to the decedent’s death.

This newly added rule for 2021 creates an absolute cut off for creditors of a decedent’s Georgia probate estate to pursue their claims that arose prior to a decedent’s death.

2021 Updates to Georgia Probate Court Deadlines

Throughout the Georgia Code, response deadlines have been extended to 30 days as the default, instead of the shorter 10 to 13 days as was often the case.  Be sure to check the specific deadlines applicable to your particular situation, and consult with a Georgia probate lawyer to make sure you do not miss a deadline after receiving notice.

To see additional 2021 updates that impact the Georgia probate courts, click here to access House Bill 865.

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