Requisites for Admission to Ancillary Probate

  1. Law
  2. Georgia Code
  3. Wills, Trusts, and Administration of Estates
  4. Probate
  5. Foreign and Out-of-State Wills; Nondomiciliaries
  6. General Provisions
  7. Requisites for Admission to Ancillary Probate

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  1. A foreign will or an out-of-state will duly admitted to probate or established under the laws of the domiciliary jurisdiction may be admitted to ancillary probate in solemn form upon proof that the will has not been offered for probate in this state in proceedings in which a caveat to such probate has been finally sustained or is pending.
  2. For purposes of ancillary probate of out-of-state wills, when the out-of-state will has been admitted to probate or established in the domiciliary jurisdiction, the will may be admitted to ancillary probate in solemn form upon production of a properly certified copy of the will and a properly authenticated copy of the final proceedings in the jurisdiction in which the will was probated or established, certified according to Code Section 24-9-922, and may be attacked or resisted on the same grounds as other judicial proceedings from a state of the United States.
  3. For purposes of ancillary probate of a foreign will, if the foreign will has been probated or established under the laws of the domiciliary jurisdiction, a certified copy of the will and an authenticated copy of the final proceedings in the jurisdiction in which the will was probated or established, under the seal of the court, shall be prima-facie evidence of the due execution of the will and the will may be admitted to ancillary probate but may be objected to by caveat or rebutted by proof, as in the case of a will offered for original probate.

(Code 1981, §53-5-33, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 2011, p. 99, § 97/HB 24.)

The 2011 amendment, effective January 1, 2013, substituted "Code Section 24-9-922" for "Code Section 24-7-24" near the end of subsection (b). See editor's note for applicability.

Editor's notes.

- Ga. L. 2011, p. 99, § 101/HB 24, not codified by the General Assembly, provides that this Act shall apply to any motion made or hearing or trial commenced on or after January 1, 2013.

Law reviews.

- For article, "Evidence," see 27 Ga. St. U. L. Rev. 1 (2011). For article on the 2011 amendment of this Code section, see 28 Ga. St. U. L. Rev. 1 (2011).

COMMENT

This section replaces former OCGA Secs. 53-3-41, 53-3-46 (which dealt only with wills that bequeathed personal property), and 53-3-48 (which dealt only with wills probated in a foreign country). Subsection (a), a new section, provides for the ancillary probate in Georgia of a will that has been validly probated or established in another jurisdiction and that has not been offered for probate and successfully caveated in Georgia. Subsection (b) carries forward former OCGA Secs. 53-3-41 and 53-3-46. Under this section and Code Section 24-7-24, the judicial proceedings by which out-of-state wills have been admitted to probate in the domiciliary jurisdiction shall be given the same full faith and credit as they have in the domiciliary jurisdiction. Subsection (c) expands the provisions of former OCGA Sec. 53-3-48, which applied only to wills that bequeathed personal property.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, § 3875, former Code 1933, § 113-613, and Ga. L. 1959, p. 136, § 4, are included in the annotations for this Code section.

Foreign will devising real property located in Georgia must conform to Georgia law of attestation. Although a foreign will, which has been admitted to probate in the state where the testator lived at the time of death, may be probated in this state by the "production of an exemplification of the probate proceedings," the probate of a foreign will in Georgia is a nullity as respects real estate in Georgia where the will is attested by only two witnesses, and not by three witnesses as required by the former laws of Georgia. Gibson v. Gaines, 46 Ga. App. 458, 167 S.E. 782 (1933) (decided under former Civil Code 1910, § 3875).

An administrator with the will annexed of a foreign will attested to by only two witnesses and not three as required by Georgia law, which has been probated in Georgia could not, by virtue of such probate, administer on real estate in Georgia and, where the administrator probated such foreign will in a court of ordinary (now probate court) in Georgia, in the manner as required, and at the same time made application for leave to sell, for the purpose of paying debts, real estate located in Georgia, it was a valid objection to such order of sale interposed by an heir at law of the testator that the probate of the will in Georgia was a nullity because it was not executed in accordance with the former laws of Georgia. Gibson v. Gaines, 46 Ga. App. 458, 167 S.E. 782 (1933) (decided under former Civil Code 1910, § 3875).

Admission of foreign will bequeathing personalty.

- When a will bequeathing realty and personalty was executed according to the law of the state where the testator resided, and was duly probated in that state, it may be treated in this state as a valid bequest of such personalty, although the will was not attested by as many as three witnesses as required by the law of Georgia, accordingly a court did not err in admitting in evidence a certified copy of a New York will, it appearing that the only property claimed by the plaintiff under such will consisted of notes secured by deeds to real estate in Georgia; and that no interest in the real estate itself was claimed thereunder. Fraser v. Rummele, 195 Ga. 839, 25 S.E.2d 662 (1943) (decided under former Code 1933, § 113-613).

Cited in Cook v. Sheats, 222 Ga. 70, 148 S.E.2d 382 (1966).

RESEARCH REFERENCES

Am. Jur. 2d.

- 79 Am. Jur. 2d, Wills, §§ 21, 729.

C.J.S.

- 95 C.J.S., Wills, § 592. 96 C.J.S., Wills, §§ 805, 806, 808 et seq.

ALR.

- Conflict of laws respecting wills as affected by statute of forum providing for will executed in accordance with law of another state, 169 A.L.R. 554.

Conflict of laws as to pretermission of heirs, 99 A.L.R.3d 724.


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