Nomination of Testamentary Conservator; No Notice, Bond, or Security Required; Rights, Powers, and Duties

1. Law
2. Georgia Code
3. Guardian and Ward
4. Conservators of Minors
5. Property
6. Nomination of Testamentary Conservator; No Notice, Bond, or Security Required; Rights, Powers, and Duties

1. Every parent, by will, may nominate a testamentary conservator for the parent's minor child for the property that passes to the minor under the parent's will.
2. Upon probate of the will, letters of conservatorship shall be issued to the individual nominated in the parent's will who shall serve as testamentary conservator without notice or hearing.
3. A testamentary conservator shall not be required to give bond and security on the property that passes to the minor under the parent's will, except in the case of waste committed or apprehended, in which case the court may require a bond and security. If the testamentary conservator fails to give bond as required, the court may dismiss the conservator and appoint another conservator. If property accrues or has accrued to the minor from sources other than the parent's will, the court may appoint a different conservator for such property or may appoint the testamentary conservator for such property and require the testamentary conservator to give bond for the property thus accruing.
4. In all other respects a testamentary conservator shall have the same rights, powers, and duties as other conservators appointed by the court.

(Code 1981, §29-3-5, enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2005, p. 60, § 29/HB 95.)

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).

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 where 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).

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.

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