If no objection is made to the petition, the probate court shall order the administrator to distribute the assets in the manner requested in the petition. If objection is made, upon the evidence submitted, the probate court shall divide the assets in kind in shares that are pro rata or are not pro rata as to each asset and order the administrator to distribute the shares accordingly.
(Code 1981, §53-2-32, enacted by Ga. L. 1996, p. 504, § 10.)
Law reviews.- For annual survey of law of wills, trusts, guardianships, and fiduciary administration, see 56 Mercer L. Rev. 457 (2004).
COMMENTThis section replaces former OCGA Secs. 53-4-12 and 53-4-13. The section eliminates the use of three appraisers and instead has the probate court order the administrator to distribute assets in kind in accordance with the petition unless an objection to the petition is made. If an objection is made, the court is to hear the petition and then, in the court's discretion, order a distribution in kind that is or is not pro rata as to each asset.
JUDICIAL DECISIONS
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Code 1933, §§ 113-1019 and 113-1020, are included in the annotations for this Code section.
Effecting provisions.
- Former Code 1933, §§ 1019 and 1020 provide the machinery for carrying into effect the provisions of former Code 1933, § 113-1018. Kaiser v. Kaiser, 178 Ga. 355, 173 S.E. 688 (1934) (decided under former Code 1933, § 113-1019).
Judgment of probate court presumed fair and proper.
- Probate court by express statute being clothed with jurisdiction generally to divide the property of decedents in kind, and being a court of original and competent jurisdiction for that purpose, it must be conclusively presumed that the court had before it all necessary and competent evidence to authorize the judgment. In these circumstances, the courts are always extremely loath to enter upon an investigation de novo. Kaiser v. Kaiser, 178 Ga. 355, 173 S.E. 688 (1934) (decided under former Code 1933, § 113-1020).
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 confining the assignment of the various parcels by the appraisers, no objection being filed or appeal taken, they are bound by such judgment. They 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) (decided under former Code 1933, § 113-1020).
When devisee brings equitable petition against coexecutors of an estate seeking a partition of the property of the estate through a sale by the receiver, and alleging that more than 20 years had elapsed since the executors had qualified, that all the debts of the estate had been paid, and that executors were in possession of all real and personal property belonging to the estate, the allegations are insufficient to authorize the grant of the prayers for equitable petition between the devisees because plaintiff devisee has a full and adequate remedy under the law in the court of ordinary (now probate court) to require executors to distribute the estate by division or partition. Salter v. Salter, 209 Ga. 511, 74 S.E.2d 241 (1953) (decided under former Code 1933, § 113-1020).
Cited in McMullen v. Carlton, 192 Ga. 282, 14 S.E.2d 719 (1941); Beard v. Beard, 197 Ga. 487, 29 S.E.2d 595 (1944); Bell v. Cone, 208 Ga. 467, 67 S.E.2d 558 (1951).
RESEARCH REFERENCES
Am. Jur. 2d.
- 31 Am. Jur. 2d, Executors and Administrators, §§ 488 et seq., 972, 976 et seq., 982, 985 et seq., 987.
C.J.S.- 34 C.J.S., Executors and Administrators, §§ 648 et seq., 634, 635, 637.
ALR.
- Partition: division of building, 28 A.L.R. 727.
Failure of decree or order of distribution of decedent's estate to describe specifically the property or property interests involved, or misdescription thereof, 120 A.L.R. 630.
Conclusiveness of statement or decision of accountant or similar third person under contract between others requiring property to be valued by him, 50 A.L.R.2d 1268.
Lack of final settlement of intestate's estate as affecting heir's right to partition of realty, 92 A.L.R.3d 473.
ARTICLE 4 DISPENSING WITH ADMINISTRATION