(Laws 1799, Cobb's 1851 Digest, p. 281; Laws 1810, Cobb's 1851 Digest, p. 283; Ga. L. 1851-52, p. 91, § 1; Ga. L. 1855-56, p. 147, § 1; Code 1863, § 306; Code 1868, § 366; Code 1873, § 331; Code 1882, § 331; Civil Code 1895, § 4232; Civil Code 1910, § 4790; Code 1933, § 24-1901; Ga. L. 1969, p. 505, § 2; Ga. L. 1982, p. 1369, §§ 1, 3; Ga. L. 1982, p. 1502, § 1; Ga. L. 1988, p. 745, § 1; Ga. L. 2009, p. 827, § 4/HB 495; Ga. L. 2015, p. 385, § 4-15/HB 252; Ga. L. 2018, p. 356, § 1-19/SB 436; Ga. L. 2018, p. 1089, § 4/SB 301.)
The 2018 amendments. The first 2018 amendment, effective July 1, 2018, substituted "Hear" for "Receive pleas of guilty and impose sentences in" at the beginning of paragraph (b)(9). The second 2018 amendment, effective July 1, 2018, added paragraph (a)(10); and redesignated former paragraphs (a)(10) and (a)(11) as present paragraphs (a)(11) and (a)(12), respectively.
Cross references.- Issuance of marriage licenses generally, § 19-3-30 et seq.
Service by judge of probate court as election superintendent in county not having county board of elections, § 21-2-2(35).
Jurisdiction of probate courts with regard to violations of game and fish laws, § 27-1-35.
Guardians of minors generally, § 29-2-1 et seq.
Guardians of incapacitated adults generally, § 29-4-1 et seq.
Judges of probate courts as legal custodians and distributors of moneys due minors or insane persons not having legal guardian, § 29-8-1 et seq.
Orders by court for examination of persons for mental illness, mental retardation or alcoholism, §§ 37-3-62,37-4-40, and37-7-62.
Probate generally, § 53-3-1 et seq.
Administrators and executors and administration of estates generally, §§ 53-6-1 et seq.,53-7-1 et seq.
Repeal of local rules, Uniform Rules for the Probate Courts, Rule 1.1.
Code Commission notes.- Pursuant to Code Section 28-9-5, in 2018, a semicolon was substituted for a period at the end of paragraph (a)(10).
Editor's notes.- Ga. L. 2015, p. 385, § 1-1/HB 252, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'J. Calvin Hill, Jr., Act.'"
Law reviews.- For article surveying developments in Georgia juvenile court practice and procedure from mid-1980 through mid-1981, see 33 Mercer L. Rev. 167 (1981). For survey article on domestic relations, see 34 Mercer L. Rev. 113 (1982). For survey article on real property, see 34 Mercer L. Rev. 255 (1982). For annual survey on wills, trusts, guardianships, and fiduciary administration, see 67 Mercer L. Rev. 273 (2015). For article on the 2018 amendment of this Code section, see 35 Ga. St. U.L. Rev. 204 (2018).
JUDICIAL DECISIONSANALYSIS
General Consideration
Judgment is nullity if probate court has no jurisdiction.
- If, the fact which alone gives jurisdiction to a court of ordinary (now probate court) be recited, and from that fact it appears that the court has no jurisdiction on the face of the record, then the judgment is a nullity. Davis v. Melton, 51 Ga. App. 685, 181 S.E. 300 (1935).
Judgment nullity when illegal procedure followed.
- Judgment and appointment of a guardian was a nullity since the record showed the applicants themselves in a proceeding involving the validity of a will attempted to waive the ten day notice and the court proceeded to declare the testatrix incompetent and appointed a guardian for the testatrix (two of the applicants) in two days without complying with the law. English v. Shivers, 220 Ga. 737, 141 S.E.2d 443 (1965).
Court-appointed guardian need not seek court approval of settlement.
- Probate court clearly has jurisdiction to appoint a guardian for a minor. However, a guardian, once appointed, need not obtain the approval of the probate court to settle a contested or doubtful claim for or against the minor. Accordingly, any settlement of the tort claims of minors to which their duly appointed guardian agreed would not have to be approved by the probate court. King Cotton, Ltd. v. Powers, 200 Ga. App. 549, 409 S.E.2d 67 (1991).
Facts considered in exercise of jurisdiction.
- Want of jurisdiction in the court of ordinary (now probate court) to grant letters of administration in a particular case is not shown by allegations that at the time of the grant of administration a will was on file in the office of the ordinary (now probate judge), which had been previously propounded, but, no caveat having been interposed, probate was refused on account of failure of the propounder to produce evidence that was accessible to establish the will, and that the will was subsequently probated; such facts may be considered in the exercise of jurisdiction, but those facts are not jurisdictional facts. Scarborough v. Long, 186 Ga. 412, 197 S.E. 796, cert. denied, 305 U.S. 637, 59 S. Ct. 107, 83 L. Ed. 410 (1938).
Court of equity may not impede exclusive jurisdiction of probate court.
- Court of ordinary (now probate court) has original and exclusive jurisdiction, in the first instance, of the probate of wills; and a court of equity in the exercise of the court's equity powers has no jurisdiction to enjoin the custodian of an alleged will from offering the will for probate, or for any reason to decree cancellation of an alleged will on which no action has been taken by the court of ordinary (now probate court). The rule that equity seeks to do complete justice will not bring into equitable jurisdiction matters on which another court has exclusive jurisdiction. Furr v. Jordan, 196 Ga. 862, 27 S.E.2d 861 (1943).
While probate proceeding pending, probate court had jurisdiction.
- Trial court properly granted the defendant's motion to dismiss the complaint because to the extent the plaintiff's fraud claim was based on the execution of the 2013 will, the trial court did not have jurisdiction to consider that claim since a probate proceeding was pending over which the trial court had no jurisdiction. Copeland v. Miller, 347 Ga. App. 123, 817 S.E.2d 692 (2018).
Probate court may vacate fraudulent judgment probating will.
- Both prior to, and since, the Civil Practice Act (see now O.C.G.A. § 9-11-1 et seq.), the court of ordinary (now probate court) has had jurisdiction to vacate the court's judgment probating a will in solemn form which was obtained by fraud or other irregularity that renders the judgment voidable. Dennis v. McCrary, 237 Ga. 605, 229 S.E.2d 367 (1976).
Court of equity can grant relief from fraudulent scheme without usurping jurisdiction of ordinary's (now probate judge's) court by declaring the return of the appraisers in the court of ordinary (now probate court) null and void, and enjoining the defendants from using a year's support proceeding as a device to defraud the creditors of the defendant son. Dukes v. Cairo Banking Co., 220 Ga. 507, 140 S.E.2d 182 (1964).
Court of equity may set aside appointment of administrator obtained by fraud in falsely representing that necessary jurisdictional facts existed. Neal v. Boykin, 129 Ga. 676, 59 S.E. 912, 121 Am. St. R. 237 (1907).
Person not qualified voter cannot be probate judge.
- Under application of the provisions of the Constitution and laws of this state, a person who is not a qualified voter is not eligible for the office of ordinary (now probate judge) of a county. Lee v. Byrd, 169 Ga. 622, 151 S.E. 28 (1929).
Superior court had concurrent jurisdiction with probate court.
- Executor of the estate and partnership head faced uncertainty with respect to conflicting duties to the partnership and to the estate and beneficiaries; thus, a declaratory judgment was an appropriate vehicle to clarify the executor's obligations, and the Georgia superior court had concurrent jurisdiction with the probate court to address those issues as well as was authorized to exercise the court's concurrent and equitable jurisdiction to decide the requests for the temporary restraining orders. Rentz v. Rentz, 339 Ga. App. 66, 793 S.E.2d 112 (2016).
Concurrent jurisdiction over counterclaim for accounting of estate.
- Because the plaintiffs asserted claims for conversion of property and sought a court order requiring the defendants to turn over certain items of personal property, such claims were properly heard by the superior court, as the court of equity and, accordingly, the superior court properly exercised concurrent jurisdiction over the counterclaim for accounting of an estate. Braswell v. Benton, 351 Ga. App. 372, 830 S.E.2d 758 (2019).
Superior court lacks jurisdiction of expected inheritance and gift.
- To the extent that the sons' claim concerning their mother's will is one based upon expected inheritance or gift, the superior court has no jurisdiction over the claim while probate proceedings are pending. Morgan v. Morgan, 256 Ga. 250, 347 S.E.2d 595 (1986).
Issue that belongs in probate court.
- Trial court in a condemnation action exceeded the court's authority in ruling that the state's tax lien did not have priority over an attorney fee claim against a landlord's estate when the issue belonged first in a probate court proceeding. State Revenue Comm'r v. Fleming, 172 Ga. App. 887, 324 S.E.2d 821 (1984).
Trial court did not err in dismissing a purported beneficiary's complaint alleging that the executors breached the fiduciary duties owed to the beneficiary by wasting the assets of the beneficiary's parents' estates and failing to distribute assets because the claims would be more properly heard by the probate court which had original and exclusive jurisdiction over such matters; the probate court was equipped to handle such claims and had the authority to grant the relief requested, if necessary. Benefield v. Martin, 276 Ga. App. 130, 622 S.E.2d 469 (2005).
Superior court erred in granting an aunt and uncle custody of minor children because the court lacked subject matter jurisdiction to consider the petition for custody since a probate court had exclusive jurisdiction to issue and revoke letters of testamentary guardianship, and O.C.G.A. § 29-2-4(b) mandated the issuance of letters of testamentary guardianship to the brother of the children's father without notice and a hearing and without consideration of the children's best interests; equity afforded no valid basis for the superior court's exercise of jurisdiction because the aunt and uncle had an appropriate remedy in the probate court to challenge the testamentary guardianship: a petition for revocation or suspension of the brother's letters of testamentary guardianship. Zinkhan v. Bruce, 305 Ga. App. 510, 699 S.E.2d 833 (2010).
Improper advisory opinion on validity of will.
- Guardian's declaratory judgment action seeking to have an elderly woman's 2013 last will and testament deemed invalid and void was properly dismissed by the trial court because the elderly woman was still alive and may still revoke the 2013 will; therefore, any ruling determining the will's validity constituted an improper advisory opinion. Kellar v. Davis, 350 Ga. App. 385, 829 S.E.2d 466 (2019), cert. denied, No. S19C1423, 2020 Ga. LEXIS 26 (Ga. 2020).
Jurisdiction to remove executrix.
- Probate court had jurisdiction to remove the decedent's niece as executrix, due to an alleged conflict of interest; the order did not attempt to determine title to property. In re Estate of Coutermarsh, 325 Ga. App. 288, 752 S.E.2d 448 (2013).
Res judicata.
- Court of appeals did not err in holding that res judicata barred a daughter's complaint for breach of contract against a widow because the relevant facts pled in the daughter's prior attempt to set aside the year's support granted to the widow on the basis of fraud were identical to those the daughter alleged in support of the breach of contract claim; the daughter's fraud claim was determined on the merits on appeal to the superior court, and the daughter had a full and fair opportunity to have litigated any related claims against the widow in the action the daughter initially filed in the probate court. Crowe v. Elder, 290 Ga. 686, 723 S.E.2d 428 (2012).
Cited in Burgamy v. Holton, 165 Ga. 384, 141 S.E. 42 (1927); Coleman v. Hodges, 166 Ga. 288, 142 S.E. 875 (1928); Elliott v. Johnson, 178 Ga. 384, 173 S.E. 399 (1934); Bruce v. Fogarty, 53 Ga. App. 443, 186 S.E. 463 (1936); Chapalas v. Papachristos, 185 Ga. 544, 195 S.E. 737 (1937); Jones v. Dean, 188 Ga. 319, 3 S.E.2d 894 (1939); Robinson v. Georgia Sav. Bank & Trust Co., 106 F.2d 944 (5th Cir. 1939); Robitzsch v. State, 189 Ga. 637, 7 S.E.2d 387 (1940); Bacon v. Federal Land Bank, 109 F.2d 285 (5th Cir. 1940); Great Am. Indem. Co. v. Jeffries, 65 Ga. App. 686, 16 S.E.2d 135 (1941); Georgia Baptist Orphans Home v. Weaver, 193 Ga. 669, 19 S.E.2d 272 (1942); Fitzgerald v. Morgan, 193 Ga. 802, 20 S.E.2d 73 (1942); Taylor v. Abbott, 201 Ga. 254, 39 S.E.2d 471 (1946); Hurt v. Cotton States Fertilizer Co., 159 F.2d 52 (5th Cir. 1947); Heath v. Jones, 168 F.2d 460 (5th Cir. 1948); Tucker v. American Sur. Co., 191 F.2d 959 (5th Cir. 1951); Strickland v. Peacock, 209 Ga. 773, 77 S.E.2d 14 (1953); Woo v. Markwalter, 210 Ga. 156, 78 S.E.2d 473 (1953); McLendon v. McLendon, 96 Ga. App. 197, 99 S.E.2d 489 (1957); Moseley v. Moseley, 214 Ga. 137, 103 S.E.2d 540 (1958); Dockery v. Findley, 216 Ga. 807, 120 S.E.2d 608 (1961); Cromer v. Chambers, 104 Ga. App. 196, 121 S.E.2d 397 (1961); Caldwell v. Miles, 228 Ga. 177, 184 S.E.2d 470 (1971); Maddox v. Wheeler, 230 Ga. 580, 198 S.E.2d 284 (1973); In re McCool, 267 Ga. App. 445, 600 S.E.2d 403 (2004); Babb v. Babb, 293 Ga. App. 140, 666 S.E.2d 396 (2008); In re Estate of Long, 307 Ga. App. 896, 706 S.E.2d 704 (2011).
General Jurisdiction
Jurisdiction and powers of probate court.
- Court of ordinary (now probate court) has jurisdiction of matters pertaining to the estates of deceased persons, jurisdiction over administrators, jurisdiction to compel administrators to account for the assets of an estate in the administrator's possession or custody, and jurisdiction in such cases to attach and punish for contempt. Melton v. Jenkins, 50 Ga. App. 615, 178 S.E. 754 (1935).
Jurisdiction to render judgment presumed.
- Court of ordinary (now probate court) is one of general jurisdiction. Hence, jurisdiction to render a judgment is presumed. Stuckey v. Watkins, 112 Ga. 268, 37 S.E. 401, 81 Am. St. R. 47 (1900); Jones v. Smith, 120 Ga. 642, 48 S.E. 134 (1904).
Facts for jurisdiction need not appear on face or record.
- Court of ordinary (now probate court) is a court of general jurisdiction, and therefore the facts which give the court jurisdiction need not appear on the face of the judgment or record; for instance, the publication of a citation for appointment or removal of an administrator need not appear upon the face of the judgment; and if nothing to the contrary appears, it will be presumed that all of the essential prerequisites have been complied with before the ordinary (now probate judge) entered the judgment or order. Davis v. Melton, 51 Ga. App. 685, 181 S.E. 300 (1935).
Probate court has jurisdiction over legal and fact questions.
- Court of ordinary (now probate court) has jurisdiction to hear and determine issues of facts and to apply legal principles in a citation for settlement brought against an administrator; no construction of a will being involved, the court does not lose jurisdiction because questions of law as well as of fact are involved. Porter v. Watson, 51 Ga. App. 848, 181 S.E. 680 (1935).
Jurisdiction over claim for breach of fiduciary duty.
- Probate court had jurisdiction over a claim against executors of an estate in which the claimants sought payment of damages for breach of a fiduciary duty. Heath v. Sims, 242 Ga. App. 691, 531 S.E.2d 115 (2000).
Probate court properly revoked letters testamentary, ordered reimbursement to a decedent's estate of excessive expenses, and ordered a settling of the estate's accounts after the decedent's executor committed 17 breaches of fiduciary duty including failing to wind up the estate and failing to provide the decedent's other child with an accounting. Fowler v. Cox, 264 Ga. App. 880, 592 S.E.2d 510 (2003).
Extent of probate court jurisdiction over insane persons.
- Court of ordinary (now probate court) is vested with original, exclusive, and general jurisdiction over insane persons and the appointment and removal of their guardians. Shea v. Gehan, 70 Ga. App. 229, 28 S.E.2d 181 (1943).
Jurisdiction of out-of-state persons of unsound mind.
- Former Code 1933, § 24-1901 (see now O.C.G.A. § 15-9-30) was not confined solely to persons of unsound mind who reside in this state, but was comprehensive enough to embrace persons of unsound mind who live beyond the confines of Georgia. Shea v. Gehan, 70 Ga. App. 229, 28 S.E.2d 181 (1943).
Jurisdiction over guardianship for mentally disabled ward.
- Probate court had the authority to establish a set visitation schedule between an adult mentally disabled ward and the ward's father in order to protect the ward's rights and best interests under the broad powers granted in O.C.G.A. §§ 15-9-30(a),29-4-40, and29-4-41, despite the mother's/guardian's objection to the visitation. In re Estate of Wertzer, 330 Ga. App. 294, 765 S.E.2d 425 (2014).
Judgment by judge or court.
- If a proceeding has been instituted before the ordinary (now probate judge), it is the act of the ordinary (now probate judge), and not the title, which determines whether the judgment is that of a court of ordinary (now probate court) or of the ordinary (now probate judge). In a proceeding for the appointment or removal of a guardian, the ordinary (now probate judge) was acting as a court under the jurisdiction conferred by former Code 1933, § 24-1901 (see now O.C.G.A. § 15-9-30). Morse v. Caldwell, 55 Ga. App. 804, 191 S.E. 479 (1937).
Limited jurisdiction to determine necessity of guardian.
- For examination inquiring into a person's capacity to manage the person's own estate the jurisdiction of the ordinary (now probate judge) is extremely limited, the proceedings are summary and must be strictly construed, and must show on the proceedings face such facts especially as to the giving of notice, the issuance of the commission, and the return thereof, as will authorize the judgment appointing the guardian. Milam v. Terrell, 214 Ga. 199, 104 S.E.2d 219 (1958).
In a controversy as to the right of guardianship, the probate court is not an appropriate court to take action under O.C.G.A. § 19-7-4, which provides for the loss of parental custody. Brown v. King, 193 Ga. App. 495, 388 S.E.2d 400 (1989).
Probate judge has judicial, ministerial, and clerical duties.
- Ordinary (now probate judge) is official charged with performance of judicial, ministerial, and clerical duties. On admitting a will to probate, the ordinary (now probate judge) acts as a judicial officer, the subject matter being one over which the ordinary (now probate judge) has jurisdiction. Castleberry v. Horne, 220 Ga. 691, 141 S.E.2d 394 (1965).
Probate court may fix interlocutory and administration costs.
- Petition to fix interlocutory costs and expenses of administration is within the jurisdiction of the court of ordinary (now probate court) as a necessary matter to the administration of an estate of a deceased person. Murphy v. Hunt, 73 Ga. App. 707, 37 S.E.2d 823 (1946).
Court of ordinary (now probate court) has jurisdiction of a petition of former executors of an estate, which is being administered in that court, to cite the administrator de bonis non cum testamento annexo to show cause why certain disputed items, claimed by the former legal representatives to be proper items of interlocutory costs or expenses of administration incurred by them or owing to them in connection with their administration of the estate, should not be allowed and paid as items of costs and expenses of administration and to determine such. Murphy v. Hunt, 73 Ga. App. 707, 37 S.E.2d 823 (1946).
Plaintiffs have remedy in probate court if executor unfit.
- If the executor is unfit to handle the estate or there is cause for the executor's removal, plaintiffs have a remedy for such in the court of ordinary (now probate court). Tinsley v. Maddox, 176 Ga. 471, 168 S.E. 297 (1933).
Probate judge determines whether audit was necessary.
- Whether an audit delivered by the former representative of the estate to the administrator along with the other assets of the estate is a proper and necessary item and expense of administration and should be paid as such out of the assets of the estate is a matter to be determined by the ordinary (now probate court judge). Murphy v. Hunt, 73 Ga. App. 707, 37 S.E.2d 823 (1946).
Lack of Jurisdiction
Construction of will is not within jurisdiction of probate court. Lowell v. Bouchillon, 246 Ga. 357, 271 S.E.2d 498 (1980).
No jurisdiction to adjudicate claims of title to property.
- Probate court does not have the jurisdiction to adjudicate conflicting claims of title to property; thus, if the decedent's widow asserted an ownership interest in property sought by the executor of the estate, an order of the probate court giving possession of such property to the executor was void, and the widow could not be found in contempt for noncompliance with the order. In re Estate of Adamson, 215 Ga. App. 613, 451 S.E.2d 501 (1994).
No jurisdiction to issue execution against distributee.
- Court of ordinary (now probate court) is without jurisdiction to issue an execution in favor of an administrator against one of the distributees of the estate for a claimed overpayment as that is a personal issue between the administrator and the distributee to be adjudicated in a court of law. Murphy v. Hunt, 73 Ga. App. 707, 37 S.E.2d 823 (1946).
No jurisdiction to award judgment against legatees.
- Court of ordinary (now probate court) is without jurisdiction to award a judgment in favor of an administratrix of the executor of an estate against the children of the testator, who were legatees under the will, for money paid by the executor for the use and maintenance of such children. Murphy v. Hunt, 73 Ga. App. 707, 37 S.E.2d 823 (1946).
No jurisdiction in property set apart claim.
- Court of ordinary (now probate court) has no jurisdiction of a claim to property set apart to a widow as a 12-month's support. Murphy v. Hunt, 73 Ga. App. 707, 37 S.E.2d 823 (1946).
Probate court has no jurisdiction to try conflicting claims of title to real property on an application for a year's support. Johnson v. Johnson, 199 Ga. App. 549, 405 S.E.2d 544 (1991).
No jurisdiction to try title claims on application for year's support.
- Probate court erred by allowing the objections of a bank and a decedent's parents solely on the basis of adverse title and by denying a year's support to the widow when the widow failed to meet the resulting burden of proof because the probate court lacked the jurisdiction under Ga. Const. 1983, Art. VI, Sec. III, Para. I and O.C.G.A. § 15-9-30 to determine that the relevant money-market account and real property were not part of the estate; despite the jurisdictional limitation and the lack of an appropriate objection, the probate court proceeded to conduct a hearing as to the amount necessary for the widow's support, thereby inappropriately placing upon the widow a burden of proof that was contrary to O.C.G.A. § 53-3-7(a) and otherwise lacking in the absence of the jurisdictionally defective objections to the petition. In re Mahmoodzadeh, 314 Ga. App. 383, 724 S.E.2d 797 (2012).
No jurisdiction over fraud claims.
- Trial court erred by granting summary judgment to an estate executor in a suit asserting fraud and other claims brought by two siblings as the trial court incorrectly determined that the privileges set forth in O.C.G.A. §§ 51-5-7(2) and51-5-8 applied to the fraud claims. Moreover, neither collateral estoppel nor res judicata barred the action since a prior probate court proceeding did not involve the same issues. Further, the probate court had no jurisdiction over the fraud and intentional interference with a gift claims. Morrison v. Morrison, 284 Ga. 112, 663 S.E.2d 714 (2008).
Petition for order of sale of life estate.
- To entertain a petition from a widow seeking a judgment of the court that she was in dire need and an order of sale of the property left to her for life by her husband's will does not fall within the provisions giving the court of ordinary (now probate court) jurisdiction of the sale and disposition of property belonging to deceased persons' estates. Castleberry v. Horne, 220 Ga. 691, 141 S.E.2d 394 (1965).
Procedure
Application for letters of administration must be made to the ordinary (now probate judge). The granting of letters is by the court of the ordinary (now probate court), not by the ordinary (now probate judge). Barclay v. Kimsey, 72 Ga. 725 (1884).
Probate court controls administration of estate pending litigation.- Court of ordinary (now probate court) has ample power to conserve the estate, and require bond and returns by the executor, and otherwise control the administration pending the litigation and a federal court cannot interfere. Heath v. Jones, 168 F.2d 460 (5th Cir. 1948).
Question validity of will in probate court.
- Son of deceased should have applied to the ordinary (now probate judge) for a citation calling on the propounder to prove the will in solemn form and by a caveat in that proceeding could have questioned the validity of the deceased's will, but the son was not later entitled to a suit in equity to enjoin the administrator on the grounds that the will was probated in common and not solemn form. Crockett v. Oliver, 218 Ga. 620, 129 S.E.2d 806 (1963).
Equitable claims in superior court versus probate proceedings.
- If a claimant is simply asking a superior court to exercise equitable powers to set aside various inter vivos transfers that were allegedly induced through undue influence, the fact that the property that was the subject of such transfers might end up in an estate that is currently the subject of pending probate proceedings does not mean that the superior court's adjudication of the claims in equity would encroach upon the probate court's exclusive jurisdiction under O.C.G.A. § 15-9-30(1) over the probate of wills. Lewis v. Van Anda, 282 Ga. 763, 653 S.E.2d 708 (2007).
Examine person alleged incapable before appointing of guardian.
- Appointment of guardians for persons of unsound mind who are incapable of managing their estates shall occur only after formal examination of such person. Milam v. Terrell, 214 Ga. 199, 104 S.E.2d 219 (1958).
Heirs may not disregard probate court partition judgment.
- When parties holding as heirs an undivided interest in lands have abandoned, without formally dismissing, a proceeding instituted in the superior court for partition, and agreed among themselves to institute such a proceeding in the court of ordinary (now probate court) to bring about a partition of the same lands, and this is done by appropriate proceeding in that court, resulting in a judgment confirming the assignment of the various parcels by the appraisers, no objection being filed or appeal taken, the parties are bound by such judgment. The parties will not subsequently be permitted to disregard such judgment, and seek, by amendment to the original petition in superior court, another partitioning of such lands. Zeagler v. Zeagler, 192 Ga. 453, 15 S.E.2d 478 (1941).
Executor or administrator may be called to accounting.
- Only an executor or administrator standing in the relationship of an officer of court, to the court of ordinary (now probate court), may be called to an accounting in that court with respect to the executor's acts in the management of the estate. Murphy v. Hunt, 73 Ga. App. 707, 37 S.E.2d 823 (1946).
Commissions of legal representatives of estate.
- Amount of commissions of a legal representative of an estate, whether or not the commissions have been forfeited by the representative in one of the ways provided by law, or paid, in whole or in part, by a previous representative, or retained by such representative on a final return made by the representative in that court, are all matters peculiarly within the purview of the (probate) court wherein the estate is being administered and are matters which may be determined in that court. Murphy v. Hunt, 73 Ga. App. 707, 37 S.E.2d 823 (1946).
Court of ordinary (now probate court) may order sale of real estate and provide for disposition thereof. Davis v. Howard, 56 Ga. 430 (1876).
Distribution of estate by probate court.
- Probate court was authorized to refrain from distributing the decedent's automobile and furniture to decedent's brother in spite of the brother's claim that that was decedent's stated desire since the decedent's will did not so provide. Sherard v. Aldridge, 251 Ga. App. 445, 554 S.E.2d 590 (2001).
Probate court may award reasonable attorney fees.
- In an action by a plaintiff heir of an estate to recover from the assets of the estate reasonable attorney fees to pay counsel who prosecuted an action for the heir against an administrator holding property adversely to the estate, which action was successful and resulted in bringing into the estate a large fund which would not otherwise have been recovered for administration, the court of ordinary (now probate court) having jurisdiction of the administration of the estate may award reasonable attorney fees out of the fund recovered for the use of such counsel regardless of the terms of an express contract between the plaintiff heir and the attorneys as to their fees, since such heir, not being an administrator, had no power to bind the estate for services in the absence of an order of the ordinary (now probate judge) allowing the same. Estes v. Collum, 91 Ga. App. 186, 85 S.E.2d 561 (1954).
Probate court may determine question of court's own jurisdiction.
- Court of ordinary (now probate court) to which application is made for a grant of administration is the proper tribunal to determine the question of the court's own jurisdiction. Arnold v. Arnold, 62 Ga. 627 (1879).
Collateral attack of judgments of court of ordinary (now probate court) is forbidden. Medlin & Sundy v. Downing Lumber Co., 128 Ga. 115, 57 S.E. 232 (1907); Bowen v. Gaskins, 144 Ga. 1, 85 S.E. 1007 (1915).
Judgments rendered in exercise of court's jurisdiction in all controversies as to right of guardianship cannot be collaterally attacked. Beavers v. Williams, 194 Ga. 875, 23 S.E.2d 171 (1942).
Judgments rendered in the exercise of the probate court's jurisdiction over the appointment and removal of guardians cannot be collaterally attacked. Bennett v. Bennett, 194 Ga. App. 197, 390 S.E.2d 276 (1990).
Court of ordinary (now probate court) is court of general jurisdiction in matter of year's support to the extent that there is every presumption in favor of an ordinary's (now probate judge's) judgment in such matter, and to the extent that such a judgment cannot be collaterally attacked except if the record shows want of jurisdictional facts; but a court of ordinary (now probate court) does not have general jurisdiction as to all subject matters. Trusco Fin. Co. v. Crowley, 86 Ga. App. 268, 71 S.E.2d 294 (1952).
Appeal from probate to superior court.
- Ordinary (now probate judge) in commitment proceedings is vested with the powers of and really acts as a court of ordinary (now probate court) from which an appeal might be made to the superior court. Shiflett v. Dobson, 180 Ga. 23, 177 S.E. 681 (1934).
OPINIONS OF THE ATTORNEY GENERAL
Probate court jurisdiction to set bail.
- Because a probate court may hold a court of inquiry pursuant to O.C.G.A. § 17-7-20, that court may also set bail for any criminal offense not included in O.C.G.A. § 17-6-1(a). 1995 Op. Att'y Gen. No. U95-1.
Probate judges continue to exercise jurisdiction over traffic cases. 1983 Op. Att'y Gen. No. 83-53.
Jurisdiction over violations of county ordinances.
- Probate court has jurisdiction over violations of county ordinances in counties of 550,000, or more, pursuant to O.C.G.A. § 36-1-17. 1995 Op. Att'y Gen. No. U95-1.
Probate court, having jurisdiction over traffic offenses pursuant to O.C.G.A. §§ 15-9-30 and40-13-21, has jurisdiction over violations of county traffic ordinances. 1995 Op. Att'y Gen No. U95-1.
No jurisdiction over criminal cases.- Probate judge may not employ an attorney to prosecute criminal cases in probate court. 1999 Op. Att'y Gen. No. U99-6.
No jurisdiction over violations of waste management or air pollution statutes.- Probate court does not have jurisdiction to try cases arising under provisions concerning waste management or air pollution. 1995 Op. Att'y Gen. No. U95-1.
Jurisdiction to issue warrants and require bond.
- Because a probate court may hold a court of inquiry pursuant to O.C.G.A. § 17-7-20, a probate court may also issue warrants and require bond pursuant to either O.C.G.A. § 17-6-90 or O.C.G.A. § 17-6-110. 1995 Op. Att'y Gen. No. U95-1.
RESEARCH REFERENCES
ALR.
- Jurisdiction of probate court to determine title to property which personal representative claims in his own right, 90 A.L.R. 134.
Jurisdiction of proceedings for restoration to competency of one who has allegedly regained sanity after an adjudication of incompetency, 121 A.L.R. 1509.
Jurisdiction in proceedings for administration of estate of decedent or guardianship of infant or incompetent as exclusive of jurisdiction of other courts of proceedings by surviving partner of decedent, infant, or incompetent or vice versa, 134 A.L.R. 1244.
Jurisdiction of court to permit sterilization of mentally defective person in absence of specific statutory authority, 74 A.L.R.3d 1210.