(For Effective Date, See note.) Settlement Agreement

1. Law
2. Georgia Code
3. Wills, Trusts, and Administration of Estates
4. Probate
5. Witnesses; Settlement Agreement; Expenses
6. (For Effective Date, See note.) Settlement Agreement

1. As used in this Code section, the term:
   1. "Court" means a probate court or any superior court on appeal or transfer from a probate court.
   2. "Interested persons" means all persons whose interests would be affected by the approval of a settlement agreement in the manner provided in this Code section.
2. The court may approve a settlement agreement under which probate is granted or denied or providing for a disposition of the property contrary to the terms of the will, if all interested persons consent and any duly qualified personal representative or temporary administrator is served with notice of the petition to approve such settlement agreement.
3. A proceeding to approve a settlement agreement under this Code section may be commenced by an interested person or by any duly qualified personal representative or temporary administrator. Service of notice of a petition to approve a settlement agreement under this Code section shall be made in the manner provided by Chapter 11 of this title to all the interested persons, any duly qualified personal representative or temporary administrator, and such other persons as the court may direct.
4. Approval of any settlement agreement that provides for the probate of the will, the sustaining of the caveat, or the disposition of the property contrary to the terms of the will shall be after such additional service of notice and such hearing as the court may direct in the exercise of its sound discretion. At any such hearing, the court may require or receive such evidence as the court may deem appropriate and may determine whether there is a bona fide contest or controversy.
5. All interested persons who are sui juris shall be authorized to enter into a settlement agreement, which shall be assented to in writing by all such interested persons.
6. All interested persons who are not sui juris or who are unborn or unknown shall be represented in such proceedings by an independent guardian ad litem. It shall be the duty of the guardian ad litem to investigate the proposed settlement and report to the court such guardian's findings and recommendations. The court shall take the recommendations into consideration but shall not be bound by such recommendations; provided, however, that, for purposes of subsection (b) of this Code section, the guardian ad litem's recommendation that the court approve the settlement agreement shall constitute consent to the settlement agreement by the guardian ad litem on behalf of all interested persons represented by such guardian.
7. If a trust designated in the will to take an interest in real or personal property would have such interest affected by the settlement agreement:
   1. The provisions of such agreement affecting such interest shall satisfy the requirements of Code Section 53-12-9 in order to be binding on the trust, the trustee, any trust director, and the trust beneficiaries; and
   2. A probate court not subject to Article 6 of Chapter 9 of Title 15, upon its own motion or upon the motion of any interested person or duly qualified personal representative or temporary administrator, shall enter an order transferring the proceeding to approve the settlement agreement to the superior court to which an appeal would lie under Code Section 5-3-2.
8. A judgment entered by the court approving the settlement agreement shall be conclusive in the same manner as probate in solemn form, as provided by Code Section 53-5-20.
9. Entering into or petitioning a court regarding a settlement agreement under this Code section shall not constitute a violation of a condition in terrorem under Code Section 53-4-68.

(Code 1981, §53-5-25, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 2020, p. 377, § 1-24/HB 865.)

Cross references.

- Guardians ad litem and appraisers for year's support in probate court proceedings, Uniform Rules for the Probate Courts, Rule 23.

Law reviews.

- For article discussing methods of summary distribution and settlement of decedent's estate, see 6 Ga. L. Rev. 74 (1971). For article discussing possibility of compromise settlement between the heirs and devisees as disincentive for unfair distribution of will, see 10 Ga. L. Rev. 447 (1976). For annual survey of law of wills, trusts, and administration of estates, see 38 Mercer L. Rev. 417 (1986). For survey article on wills, trusts, guardianships, and fiduciary administration for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 459 (2003).

COMMENT

This section carries forward former OCGA Sec. 53-3-22 but changes the former requirement that the court find that the caveat was meritorious to a requirement that the court find that there was a bona fide controversy or contest.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former O.C.G.A. § 53-3-22 are included in the annotations for this Code section.

Approval of trust necessary for approval of settlement.

- Trust was a beneficiary affected by a proposed settlement of a probate dispute as the trust was named as a beneficiary of the will; since the trust had not consented to a proposed settlement of the probate dispute, there was no valid settlement among all of the beneficiaries, and the trial court erred in approving the settlement over the trustees' objections. Leone Hall Price Found. v. Baker, 276 Ga. 318, 577 S.E.2d 779 (2003).

Application only when settlement contrary to will.

- By the statute's plain terms, O.C.G.A. § 53-5-25 applies only when a settlement disposes of estate property contrary to the terms of the will. In re Estate of Nesbit, 299 Ga. App. 496, 682 S.E.2d 641 (2009).

Settlement set aside.

- Because the probate court erred in finding that a settlement agreement between heirs to their decedent parent's estate was enforceable, given that a disabled sibling's interests were not represented, and no evidence was presented that a non-disabled sibling assented to or participated in the agreement, the court erred in approving the agreement, warranting a finding that the agreement be set aside. Freeman v. Covington, 282 Ga. App. 113, 637 S.E.2d 815 (2006).

Settlement agreement prerequisite.

- O.C.G.A. § 53-5-25 did not apply when a pro se case filed to invalidate a decedent's will and to terminate a trust and partnership agreement created in conjunction with the will did not involve a settlement agreement or the category of persons protected by the statute. Babb v. Babb, 293 Ga. App. 140, 666 S.E.2d 396 (2008), cert. denied, 2008 Ga. LEXIS 884 (Ga. 2008).

When approval of court not required.

- When all the parties interested in the estate of a testator as heirs or beneficiaries under the will are legally competent to contract, they may settle controversies by agreement and need not seek the approval of a court. Beckworth v. Beckworth, 255 Ga. 241, 336 S.E.2d 782 (1985); Hennessey v. Froehlich, 219 Ga. App. 98, 464 S.E.2d 246 (1995) (decided under former O.C.G.A. § 53-3-22).

RESEARCH REFERENCES

Am. Jur. 2d.

- 80 Am. Jur. 2d, Wills, §§ 969, 984 et seq.

C.J.S.

- 95 C.J.S., Wills, §§ 490 et seq., 536, 537.

ALR.

- Compromise or settlement of controversy over will as changing nature of interest or estate under will, 5 A.L.R. 1384.

Conveyance by life tenant and remaindermen in esse as cutting off interest of unborn persons under devise for life with remainder to a class, 25 A.L.R. 770.

Agreement, before death of third person, between his prospective heirs, devisees, or legatees as to their respective shares in the estate, 74 A.L.R. 441.

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.

Right of heirs, next of kin, or others who would have benefited by denial of probate of will, to share in the consideration for an agreement to which they were not parties, to withdraw objections to probate, 120 A.L.R. 1495.

Validity and enforceability of agreement to drop or compromise will contest or withdraw objections to probate, or of agreement to induce others to do so, 42 A.L.R.2d 1319.

Right of heir's assignee to contest will, 39 A.L.R.3d 696.

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