Nomination of Testamentary Guardian; No Bond or Security Required

1. Law
2. Georgia Code
3. Guardian and Ward
4. Guardians of Minors
5. Minors
6. Parental Rights in Guardian Selection
7. Nomination of Testamentary Guardian; No Bond or Security Required

1. Every parent, by will, may nominate a testamentary guardian for the parent's minor child.
2. 1. Unless the minor has another living parent, upon probate of the minor's parent's will, letters of guardianship shall be issued to the individual nominated in the will who shall serve as testamentary guardian without a hearing provided that the individual is willing to serve and no objection is filed. If a timely objection is filed, letters of guardianship shall only be issued after a hearing held pursuant to paragraph (4) of this subsection.
   2. At the time such will is offered for probate, notice of the testamentary guardianship shall be served by certified mail or statutory overnight delivery, return receipt requested, to the minor child's adult siblings and grandparents. If such child does not have adult siblings or grandparents, such notice shall be served on such child's great-grandparents, aunts, uncles, great aunts, or great uncles, insofar as any such relative exists.
   3. Any person who receives a notice pursuant to this subsection and objects to the appointment of the nominated testamentary guardian shall file an objection with the court within ten days of being served with notice. Such objection shall include allegations and facts with reasonable specificity stating why the nominated testamentary guardian is unfit to serve.
   4. If a timely objection is filed, the court shall conduct an expedited hearing within 30 days of the date of the filing of the last objection. The hearing shall be conducted in accordance with Code Section 29-2-14. The court shall award the letters of guardianship to the nominated testamentary guardian unless the objecting party establishes by clear and convincing evidence that the nominated testamentary guardian is unfit to serve as testamentary guardian.
   5. Any proceeding relating to the appointment of a testamentary guardian shall not affect or delay the probating of a will.
3. A testamentary guardian shall not be required to give bond or security. In all other respects a testamentary guardian shall have the same rights, powers, and duties as a permanent guardian appointed by the court.

(Code 1981, §29-2-4, enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2014, p. 780, § 4-1/SB 364.)

Cross references.

- Disability of minors with regard to disposal of property generally, § 1-2-8.

Amount of bond required from guardian of property in probate proceedings, § 53-7-34 (Pre-1998 Probate Code).

Law reviews.

- For annual survey of law of wills, trusts, and administration of estates, see 38 Mercer L. Rev. 417 (1986). For annual survey on wills, trusts, guardianships, and fiduciary administration, see 66 Mercer L. Rev. 231 (2014).

JUDICIAL DECISIONS

ANALYSIS

• General Consideration
• Bond

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under Ga. L. 1851-52, p. 101, § 1, former Code 1882, § 1804, former Civil Code 1895, § 2514, former Civil Code 1910, § 3033, and former Code 1933, § 49-103 are included in the annotations for this Code section.

Statutes providing for appointment of guardians for minor children.

- The general assembly by inclusion of word "minor " at one place and its exclusion at another did not intend that a parent might, by will, appoint a guardian for property of children who had reached their majority. Therefore, former Code 1933, § 49-103 (former O.C.G.A. § 29-4-3) only provided for appointment of guardians for persons and/or property of minor children. Adams v. Lay, 218 Ga. 451, 128 S.E.2d 502 (1962) (decided under former Code 1933, § 49-103).

Citation unnecessary in appointing guardian already appointed testamentary guardian.

- In appointing one as guardian of minors, who has already been appointed as testamentary guardian in their father's will, citation, as ordinarily required by law, is unnecessary. New York Life Ins. Co. v. Gilmore, 171 Ga. 894, 157 S.E. 188 (1931) (decided under former Civil Code 1910, § 3033).

Parental power does not include power to appoint testamentary guardian.

- One awarded parental power over minor has no power to appoint testamentary guardian for such minor. Lamar v. Harris, 117 Ga. 993, 44 S.E. 866 (1903) (decided under former Civil Code 1895, § 2514).

Only surviving parent may appoint guardian of person of minor. Adams v. Lay, 218 Ga. 451, 128 S.E.2d 502 (1962) (decided under former Code 1933, § 49-103).

Surviving parent's right to custody of child cannot be divested by will of deceased parent. Girtman v. Girtman, 191 Ga. 173, 11 S.E.2d 782 (1940) (decided under former Code 1933, § 49-103).

Custody does not include power to appoint testamentary guardian.

- Judgment or decree of divorce which gives custody and education of child of marriage to wife, does not empower her to appoint a testamentary guardian for that child while the father survives. Taylor v. Jeter, 33 Ga. 195, 81 Am. Dec. 202 (1862) (decided under Ga. L. 1851-52, p. 101, § 1).

Testamentary guardian cannot, by will, transfer custody of the ward to another. Taylor v. Jeter, 33 Ga. 195, 81 Am. Dec. 202 (1862) (decided under Ga. L. 1851-52, p. 101, § 1).

Testamentary guardian is still guardian of the person though dismissed for waste or failure to give bond. New York Life Ins. Co. v. Gilmore, 171 Ga. 894, 157 S.E. 188 (1931) (decided under former Civil Code 1910, § 3033).

Guardians appointed by will remain in place.

- Probate court did not err in issuing letters of testamentary guardianship to the brother of a father's children because O.C.G.A. § 29-2-4(b) mandated the issuance of letters of testamentary guardianship to the brother without notice and a hearing and without consideration of the best interests of the children; both the mother and father nominated the brother as the children's testamentary guardian in their respective wills, the brother consented to serve as the guardian, the wills were admitted in solemn form, no petition was filed to set aside the probate court order admitting their wills, and the probate court did not revoke the court's letters of testamentary guardianship to the brother. Zinkhan v. Bruce, 305 Ga. App. 510, 699 S.E.2d 833 (2010).

Grandparent named as testamentary guardian should prevail.

- When both parents of infant child are deceased, father having survived mother and by will having provided that his mother should be testamentary guardian of the person of such child, and when in contest between paternal and maternal grandmothers of the child it appears that both are fit and proper persons to have custody of the child, the testamentary guardian is entitled to custody. Shanks v. Ross, 173 Ga. 55, 159 S.E. 700 (1931) (decided under former Civil Code 1910, § 3033).

Cited in Poe v. Schley, 16 Ga. 364 (1854); Southern Marble Co. v. Stegall, 90 Ga. 236, 15 S.E. 806 (1892); Bulloch v. Bulloch, 45 Ga. App. 1, 163 S.E. 708 (1932); Gilmore v. Mutual Benefit Life Ins. Co., 179 Ga. 267, 175 S.E. 681 (1934); Odum v. Henry, 254 Ga. 739, 334 S.E.2d 304 (1985); Stone-Crosby v. Mickens-Cook, 318 Ga. App. 313, 733 S.E.2d 842 (2012).

Bond

When bond required.

- Bond and security is required from all general guardians appointed by the ordinary (now judge of probate court) and the ordinary has discretionary power to require additional bond and security when the estate of the ward is enlarged by subsequent acquisition. Huson v. Green, 88 Ga. 722, 16 S.E. 255 (1892) (decided under former Code 1882, § 1804).

Probate court may authorize testamentary guardian to take charge of minor's estate without requiring bond.

- Nothing in the law indicates that court of ordinary (now probate court) is without jurisdiction to authorize testamentary guardian to take charge of minor's estate without requiring bond. New York Life Ins. Co. v. Gilmore, 171 Ga. 894, 157 S.E. 188 (1931) (decided under former Civil Code 1910, § 3033).

Probate court failing to require bond can, nonetheless, issue letters of guardianship.

- Failure to require bond when property comes to ward from sources other than parent's will does not deprive probate court of original jurisdiction to issue letters of guardianship which cannot be collaterally attacked. New York Life Ins. Co. v. Gilmore, 171 Ga. 894, 157 S.E. 188 (1931) (decided under former Civil Code 1910, § 3033).

Letters of guardianship not null and void due to failure to require bond.

- Issuance of letters of guardianship was not null and void because of failure of probate court to require bond from guardian as required by former Code 1910, § 3033 (former O.C.G.A. § 29-4-3(c)) where property came to ward from sources other than parent's will. New York Life Ins. Co. v. Gilmore, 171 Ga. 894, 157 S.E. 188 (1931) (decided under former Civil Code 1910, § 3033).

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Guardian and Ward, § 11 et seq.

C.J.S.

- 39 C.J.S., Guardian and Ward, §§ 5 et seq., 10 et seq., 20 et seq.

ALR.

- Leave of court as prerequisite to action on statutory bond, 2 A.L.R. 563.

Power of parent to appoint testamentary guardian for adult imbecile child, 24 A.L.R. 1458.

Validity of statute precluding alien from acting as guardian, 39 A.L.R. 943.

Liability of attorney for loss or waste of funds of minor, 62 A.L.R. 910.

Function, power, and discretion of court where there is testamentary appointment of guardian of minor, 67 A.L.R.2d 803.

PART 3 TEMPORARY GUARDIANSHIP OF MINORS

29-2-5. Petitions for temporary guardianship; requirements of petition.

1. A petition to be appointed the temporary guardian of a minor may be filed by an individual who has physical custody of the minor.
2. The petition shall be filed in the probate court of the county of domicile of the petitioner; however, if the petitioner is not a domiciliary of this state, the petition may be filed in the probate court of the county where the minor is found.
3. A petition for the appointment of a temporary guardian shall include the following:
   1. The name, address, and date of birth of the minor;
   2. The name and address of the petitioner and the petitioner's relationship to the minor, if any;
   3. A statement that the petitioner has physical custody of the minor and:
      1. Is domiciled in the county in which the petition is being filed; or
      2. Is not a domiciliary of this state and the petition is being filed in the county where the minor is found;
   4. The name, address, and county of domicile of any living parent of the minor and a statement of whether one or both of the parents is the minor's natural guardian;
   5. A statement of whether one or both of the parents have consented in a notarized writing to the appointment of the petitioner as temporary guardian and, if so, that the consents are attached to the petition;
   6. If the sole parent or both parents have not consented to the appointment of the temporary guardian, a statement of the circumstances that give rise to the need for the appointment of a temporary guardian; and
   7. The reason for any omission in the petition for temporary guardianship in the event full particulars are lacking.

(Code 1981, §29-2-5, enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2006, p. 805, § 3/SB 534.)

Law reviews.

- For annual survey article discussing wills, trusts and administration of estates, see 52 Mercer L. Rev. 481 (2000). For article, "Wills, Trusts & Administration of Estates," see 53 Mercer L. Rev. 499 (2001). For annual survey of wills, trusts, guardianships, and fiduciary administration, see 58 Mercer L. Rev. 423 (2006).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former O.C.G.A. § 29-4-4.1 are included in the annotations for this Code section.

Temporary guardianship dissolved.

- Under former O.C.G.A. § 29-4-4.1(c), trial court correctly dissolved guardianship under former O.C.G.A. § 29-4-4.1 where guardianship at time of its creation was intended to be or was represented to be temporary in nature. Hays v. Jeng, 184 Ga. App. 157, 360 S.E.2d 913 (1987) (decided under former O.C.G.A. § 29-4-4.1)

Appointment to provide health insurance denied.

- Where the child was living with the mother, who was not alleged to be incompetent or under any duress or difficulty with respect to her parental responsibilities, the court properly refused to appoint a temporary guardian solely for the provision of health insurance. In re Roscoe, 242 Ga. App. 440, 529 S.E.2d 897 (2000) (decided under former O.C.G.A. § 29-4-4.1)

Cited in Brown v. King, 193 Ga. App. 495, 388 S.E.2d 400 (1989).

OPINIONS OF THE ATTORNEY GENERAL

In light of the similarity of the statutory provisions, opinions under former O.C.G.A. § 29-4-4.1 are included in the annotations for this Code section.

Cannot appoint permanent guardian if child has living parent.

- Unless an appointment of a temporary guardian was made under former O.C.G.A. § 29-4-4.1, a probate court was without authority to appoint a guardian of the person for a minor child if the child had living parents, unless the parents relinquished or forfeited their rights in the child. 1983 Op. Att'y Gen. No. U83-37 (decided under former O.C.G.A. § 29-4-4.1).

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