(For Effective Date, See note.) Service of Notice Where Person or Residence Unknown, or Resides Outside State

1. Law
2. Georgia Code
3. Wills, Trusts, and Administration of Estates
4. Proceedings in Probate Court
5. (For Effective Date, See note.) Service of Notice Where Person or Residence Unknown, or Resides Outside State

1. Except as otherwise prescribed by law or directed by the probate judge pursuant to Code Section 53-11-5, the provisions of this Code section shall apply in cases when a person to be served with notice of a proceeding covered by this chapter has a known current residence address outside this state, or whose current residence address is unknown.
2. Unless all such persons have known current residence addresses, the probate court shall order service of notice to be perfected by publication of the citation in the newspaper in which sheriff's advertisements are published in the county in which the petition is made. The citation shall be published once a week for four weeks prior to the date on which objections must be filed. The records of the court shall show the persons served with notice and the character of such service of notice. The published citation shall be directed to the person to be served with such notice.
3. If the current residence address of such a person is known, the court shall cause service of notice to be made by mailing by certified or registered mail or statutory overnight delivery, return receipt requested, a copy of the petition and the citation.
4. When service of notice by publication is ordered by the court pursuant to this Code section, compliance with the provisions of this Code section relating to a person to be served with notice who is known but whose current residence address is unknown shall be equivalent to personal service of a copy of the petition and citation when the fact appears in the records of the court showing the persons served with notice and the character of such service of notice. In the case of a known person whose current residence address is unknown, that person's name shall appear in the records of the court, and such records shall confirm compliance with this Code section as to that person. In any case in which service of notice by publication is granted by the court, one order for service of notice by publication shall be sufficient and the published citation shall be directed as provided in subsection (b) of this Code section.

(Code 1981, §53-11-4, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 1997, p. 1352, § 28; Ga. L. 2000, p. 1589, § 4; Ga. L. 2002, p. 1316, § 6; Ga. L. 2020, p. 377, § 1-65/HB 865.)

Cross references.

- Service of process generally, § 9-11-4.

Editor's notes.

- Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the Act shall be applicable with respect to notices delivered on or after July 1, 2000.

Law reviews.

- For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 313 (1997).

COMMENT

This section provides general procedures for serving persons who are unknown, whose residence is unknown, who are not residents of Georgia, or who reside outside Georgia under circumstances that make it difficult to determine whether they are legal residents of Georgia. This section reflects the provisions of former OCGA Sec. 53-3-14.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 113-607, and former O.C.G.A. § 53-3-14 are included in the annotations for this Code section.

Reasonable diligence in ascertaining heirs required.

- Legislature undoubtedly meant that before a propounder might correctly state that heirs were "unknown," the propounder must have exercised at least some reasonable diligence in ascertaining the heirs, and may not simply rely upon the propounder's personal knowledge without reasonable inquiry. Oakley v. Anderson, 235 Ga. 607, 221 S.E.2d 31 (1975) (decided under former Code 1933, § 113-607).

Notification of probate by publication insufficient when absent heir is member of armed forces.

- In the probate of a will in solemn form, the absence from the state, at the time of probate, of an heir at law who resided within the state, solely because of service in the armed forces of the United States, does not change one's domicile or residence so as to authorize service on that person of a notice of probate by publication. Foster v. Foster, 207 Ga. 519, 63 S.E.2d 318 (1951) (decided under former Code 1933, § 113-607).

Service upon an attorney who may represent a person is not service upon the person so as to give a court jurisdiction of the person where personal service is required. Souter v. Carnes, 229 Ga. 220, 190 S.E.2d 69 (1972) (decided under former Code 1933, § 113-607).

Cited in In re Estate of Ehlers, 289 Ga. App. 14, 656 S.E.2d 169 (2007).

RESEARCH REFERENCES

Am. Jur. 2d.

- 80 Am. Jur. 2d, Wills, § 808 et seq.

C.J.S.

- 95 C.J.S., Wills, §§ 545 et seq., 557.

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