Sale of Perishable Property; Sale of Other Properties; Disposal of Other Properties; Accounting for Proceeds; Authority of Emergency or Temporary Substitute Conservator

  1. Law
  2. Georgia Code
  3. Guardian and Ward
  4. Conservators of Adults
  5. Protection of Property Interests
  6. Sale of Perishable Property; Sale of Other Properties; Disposal of Other Properties; Accounting for Proceeds; Authority of Emergency or Temporary Substitute Conservator

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  1. A conservator may sell perishable property of the ward, property of the ward that is liable to deteriorate from keeping, or property of the ward that is expensive to keep, as early as practicable and in such manner as the court shall determine is in the best interest of the ward, after such notice and opportunity for hearing, if any, as the court shall deem practicable under the circumstances.
  2. A conservator may sell stocks or bonds of the ward that are either listed or admitted to unlisted trading privileges upon any stock exchange or quoted regularly in any newspaper having a general circulation in Georgia at a sales price not less than the stock exchange bid price or the published bid price at the time of sale and pay reasonable brokerage commissions not in excess of those customarily charged by stock exchange members.
  3. Except as otherwise provided in subsections (a) and (b) of this Code section, a conservator may petition the court to sell, rent, lease, exchange, or otherwise dispose of property of the ward, whether real or personal or mixed. The petition shall set forth the property involved and the interests therein, the specific purpose of the transaction, the proposed price, the anticipated net proceeds of the sale, all other terms or conditions proposed for the transaction, and that the proposed transaction is in the best interest of the ward.
  4. Upon the filing of the petition, the court shall appoint a guardian ad litem for the ward. The petition and notice shall be served personally on the ward and the guardian ad litem.
  5. If no written objection by a person notified pursuant to subsection (d) of this Code section is filed within 30 days following the mailing of notice or service upon the guardian ad litem, the court shall order such sale summarily in the manner and terms petitioned; provided, however, that if real property is to be converted to personal property, the court shall order the conservator to post additional bond to cover the amount of the anticipated net proceeds of the sale prior to the closing of the sale. If an objection is filed, the court shall hear the matter and grant or deny the petition for sale or make such other order as is in the best interest of the ward, which may require the sale to be private or at public auction, including confirmation of the sale by the court or otherwise.
  6. A conservator shall make a full return to the court within 30 days of every sale, specifying the property sold, the purchasers, and the amounts received, together with the terms of the sale.
  7. The recital in the conservator's deed of a compliance with legal provisions shall be prima-facie evidence of the facts recited.
  8. Where a conservator sells real property under the provisions of this Code section, liens thereon may be divested and transferred to the proceeds of the sale as a condition of the sale.
  9. An emergency or temporary substitute conservator is authorized to petition the court for leave to sell or otherwise deal with the property of the estate only if good cause is shown for not waiting until a different type of conservatorship is created or the conservatorship is terminated.

(Code 1981, §29-5-35, enacted by Ga. L. 2004, p. 161, § 1.)

Cross references.

- Filing of affidavit claiming property to be sold by executors, administrators, and trustees, § 53-8-70 (Pre-1988 Probate Code).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under Laws 1809, Cobb's 1851 Digest, p. 315, former Civil Code 1895, § 4630, and former Civil Code 1910, § 5176 are included in the annotations for this Code section.

Sale by will not applicable.

- Former Code 1933, § 49-208 (see former O.C.G.A. § 29-2-7) had no application to sale under power conferred by will. Harwell v. Foster, 102 Ga. 38, 28 S.E. 967 (1897) (decided under former Civil Code 1895, § 4630).

Superior court shall determine necessity of order and validity of claim.

- The superior court shall try both issue of necessity of order, and whether property is held adversely. Hull v. Watkins, 134 Ga. 779, 68 S.E. 506 (1910) (decided under former Civil Code 1910, § 5176).

Validity of claim not dependent upon giving of bond.

- It is not necessary to validity of claim of land at executor's or administrator's sale that bond and security should be given. Falls v. Griffith, 25 Ga. 72 (1858) (decided under Laws 1809, Cobb's 1851 Digest, p. 315).

Cited in Hooper v. Howell, 50 Ga. 165 (1873); Rexford v. Bleckley, 131 Ga. 678, 63 S.E. 337 (1908); Beach v. Lott, 132 Ga. 70, 63 S.E. 627 (1909); Crawford v. Crawford, 139 Ga. 68, 76 S.E. 564 (1912); Hammond v. Bennefield, 181 Ga. 380, 182 S.E. 391 (1935).

RESEARCH REFERENCES

C.J.S.

- 39 C.J.S., Guardian and Ward, § 140 et seq.

ALR.

- Constitutionality of statute authorizing guardian to sell or lease land of ward, 4 A.L.R. 1552.


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