(For Effective Date, See note.) Contents of Petition; Service of Notice; Issuance of Relief

  1. Law
  2. Georgia Code
  3. Wills, Trusts, and Administration of Estates
  4. Probate
  5. Jurisdiction
  6. (For Effective Date, See note.) Contents of Petition; Service of Notice; Issuance of Relief

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  1. A petition made pursuant to Code Section 53-5-50 shall set forth the allegations on which such petition is based and the name and address of the then acting personal representative, if any, of the estate, or, if none, the beneficiaries of the previously probated will required to be served by Code Section 53-5-22. Such petition shall conclude with a prayer for the issuance of an order vacating, setting aside, or amending the earlier probate and, if such petition is based upon paragraph (1) or (2) of subsection (b) of Code Section 53-5-50, for the probate of the newly propounded will or codicil in solemn form and for the issuance of new letters testamentary.
  2. The beneficiaries under the previously probated will shall be represented in the action by the then acting personal representative, if any; and service of notice upon the personal representative in the same manner as provided for by law under Chapter 11 of this title shall be the equivalent of service of notice upon the beneficiaries.
  3. If there is no then acting personal representative, such petition and the citation issued thereon shall be served upon the beneficiaries who are required to be served by Code Section 53-5-22 of the previously probated will, in the same manner as upon the heirs, unless all such parties assent to such petition.
  4. If the then acting personal representative acknowledges service of such petition and notice and assents to the relief in the acknowledgment of service of such petition and notice, the relief prayed for in such petition may issue without delay. In the event there is no then acting personal representative, if all the beneficiaries acknowledge service of such petition and notice and assent in their acknowledgments, such relief may issue without delay.

(Code 1981, §53-5-51, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 2020, p. 377, § 1-27/HB 865.)

Law reviews.

- For annual survey on wills, trusts, guardianships, and fiduciary administration, see 71 Mercer L. Rev. 327 (2019).

COMMENT

This section replaces former OCGA Sec. 53-3-61.

JUDICIAL DECISIONS

Civil Practice Act not applicable to petition to set-aside in probate proceeding.

- Probate court erred in rejecting the step-son's set-aside petition on the basis that the petition did not satisfy O.C.G.A. § 9-11-60(d) as that provision set out the narrow grounds on which a motion to set aside a judgment could be brought under the Civil Practice Act, O.C.G.A. T. 9, Ch. 11, but set-aside petitions in probate proceedings were special statutory proceedings, and the specific rules of practice and procedure for such petitions were set out at O.C.G.A. §§ 53-5-50 and53-5-51; thus, to the extent that those specific rules of practice and procedure conflicted with the Civil Practice Act, pursuant to O.C.G.A. § 9-11-81, the Civil Practice Act did not apply; thus, the probate court's order ruling on the set-aside petition was reversed. In re Estate of Jones, 346 Ga. App. 877, 815 S.E.2d 599 (2018).

Because the Civil Practice Act's (O.C.G.A. T. 9, Ch. 11) procedure for attacking a judgment through a set-aside motion was more restrictive than the Probate Code's procedure for attacking an order admitting a will to probate on the ground that another will should be admitted to probate, the constraints of the Civil Practice Act did not apply in the probate proceeding, and the probate court erred in denying the step-son's set-aside petition for failing to meet the requirements of the Civil Practice Act, rather than ruling on the merits of the petition. In re Estate of Jones, 346 Ga. App. 877, 815 S.E.2d 599 (2018).


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