(Code 1981, §53-6-11, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 1998, p. 1586, § 20.)
Cross references.- Tolling of limitations during period between death of person and commencement of representation upon his estate, §§ 9-3-92,9-3-93.
COMMENTThis section replaces former OCGA Secs. 53-3-4, 53-6-70, and 53-6-71. This section requires a person who is named in the will as executor to qualify to serve within 90 days of the date the will is admitted to probate or be deemed to have declined the right to serve. If the nominated executor does not qualify within 90 days, the person who is named in the will as the next alternative or successor executor may qualify. But if that next nominated executor does not qualify within 90 days, any person named in the will may qualify to serve as executor; if no one applies to do so, the estate is deemed to be unrepresented. See Code Sec. 53-6-13, which provides for the appointment of an administrator with will annexed in any case in which a testate estate is or becomes unrepresented. This section also provides that the failure to qualify within the specified time period does not automatically preclude the nominated executor from qualifying at a later time. See Code Sec. 53-6-12, which provides the same rule in the event a nominated executor voluntarily declines to serve. See Code Sec. 53-1-2 for the definitions of "administrator with the will annexed," "executor," and "nominated executor".
JUDICIAL DECISIONS
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, § 3868 and former Code 1933, § 113-615, are included in the annotations for this Code section.
Cited in Trustees of the Univ. of Ga. v. Denmark, 141 Ga. 390, 81 S.E. 238 (1914); Young v. Freeman, 153 Ga. 827, 113 S.E. 204 (1922); Irwin v. Peek, 171 Ga. 375, 155 S.E. 515 (1930); Carmichael v. Mobley, 50 Ga. App. 574, 178 S.E. 418 (1934); Robinson v. Georgia Sav. Bank & Trust Co., 106 F.2d 944 (5th Cir. 1939); Lewis v. Patterson, 191 Ga. 348, 12 S.E.2d 593 (1940); Fletcher v. Gillespie, 201 Ga. 377, 40 S.E.2d 45 (1946); Armstrong v. Merts, 76 Ga. App. 465, 46 S.E.2d 529 (1948); Allen v. Heys, 204 Ga. 635, 51 S.E.2d 417 (1949); Wheeler v. Wheeler, 82 Ga. App. 831, 62 S.E.2d 579 (1950); Oakley v. Anderson, 235 Ga. 607, 221 S.E.2d 31 (1975).
RESEARCH REFERENCES
Am. Jur. 2d.
- 31 Am. Jur. 2d, Executors and Administrators, § 198 et seq. 79 Am. Jur. 2d, Wills, § 730.
C.J.S.- 33 C.J.S., Executors and Administrators, § 34. 95 C.J.S., Wills, §§ 441, 443, 444.
ALR.- Statutes dealing with existing intestate administration, upon discovery of will, 65 A.L.R.2d 1201.
Statute limiting time for probate of will as applicable to will probated in another jurisdiction, 87 A.L.R.2d 721.
What circumstances excuse failure to submit will for probate within time limit set by statute, 17 A.L.R.3d 1361.
Right to probate subsequently discovered will as affected by completed prior proceedings in intestate administration, 2 A.L.R.4th 1315.