Conveyance or Encumbrance by Surviving Spouse of Property Set Aside; Approval of Probate Court

  1. Law
  2. Georgia Code
  3. Wills, Trusts, and Administration of Estates
  4. Year's Support
  5. Conveyance or Encumbrance by Surviving Spouse of Property Set Aside; Approval of Probate Court

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  1. The approval of the probate court required by subsection (b) of Code Section 53-3-19 shall be obtained in the following manner: The surviving spouse shall petition the probate court, stating the purposes of the proposed conveyance or encumbrance and describing the property the spouse desires to convey or encumber, the nature of the proposed conveyance or encumbrance, and the names, last known addresses, and ages of the children for whose benefit the year's support was set apart. If the surviving spouse has died, the petition may be made by the guardian for any one or more of the children for whose benefit the year's support was set apart. The probate court shall set a date for hearing on the petition and shall appoint a guardian ad litem who shall accept the appointment in writing to represent the minor children. Not less than ten days prior to the date set for the hearing, personal service shall be made on each child for whose benefit the year's support was set apart who has attained the age of 18 at the time the petition is filed. If the surviving spouse does not know and cannot easily ascertain the addresses of any of the children, service shall be made by publishing notice of the date and purpose of the hearing one time and by posting a copy of the notice at the courthouse not less than ten days prior to the date set for the hearing. In addition to publication, the probate court shall mail a copy of the notice to the last known address of each child whose current address is unknown, not less than ten days prior to the date set for such hearing. Objections, if any, shall be made in writing.
  2. At the hearing, the probate court shall determine that service has been made as required by this Code section and that the purpose or purposes of the proposed conveyance or encumbrance are proper and shall pass an order reciting due compliance with this Code section and approval of the proposed conveyance or encumbrance, which order shall be final and conclusive.
  3. The proceedings shall be indexed and recorded in books to be kept for that purpose by the probate court in each county in which any of the property is located.
  4. An appeal shall lie in the manner, under the restrictions, and with the effect provided for appeals from the probate court in other cases.

(Code 1981, §53-3-20, enacted by Ga. L. 1996, p. 504, § 10.)

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former O.C.G.A. § 53-5-21 are included in the annotations for this Code section.

What must be kept in books established.

- Clerks of probate courts must enter documents and proceedings in sets of books established by O.C.G.A. §§ 15-9-37(8) and former53-5-21 and must also enter them in minutes of court under § 15-9-37(7), if such matters are applications to court or orders of court, or otherwise show what was done in probate court. 1981 Op. Att'y Gen. No. U81-41 (decided under former O.C.G.A. § 53-5-21).


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