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Georgia Law Monitor METRO
PROBATE: By:
Dwight A. Meredith Copyright,
1997 The granting of civil concurrent jurisdiction and jury trials to probate courts in Georgia metropolitan counties with populations over 96,000 ("metro probate") has significantly improved the ability of parties to get civil matters resolved in probate court. At the same time, however, it has created a new and confusing minefield of jurisdictional problems. The General Assembly should remedy this situation by extending to metro probate courts the necessary equitable and plenary powers to resolve these jurisdictional issues. This article seeks to provide the reader with a toolkit which contains the tools necessary to spot and solve the most common jurisdictional and procedural problems encountered in metro probate. These tools will enable the practitioner to: identify metro or rural probate, spot jurisdictional problems, establish venue, fix discovery problems, define the grant of a probate jury trial, define jurisdiction over declaratory judgment actions, define jurisdiction over trusts, decide when to transfer, define the settlement of a minor's claim and spot appellate traps. I. Trial Court Jurisdiction A. Metro Probate. No sign hangs over the door of metro probate courts stating that they are jurisdictionally far different animals than their rural counterparts. Currently, Fulton, DeKalb, Cobb, Gwinnett, Chatham, Richmond, Clayton, Muscogee, Bibb and Doughtery Counties, O.C.G.A., Vol. 42, Cumulative Supp., at 115., have concurrent jurisdiction with the superior court over probate related matters. O.C.G.A. § 15-9-120 through 127. U.S. Bureau of the Census statistics indicate that Cherokee, Hall and Houston Counties are in line to soon elevate their probate courts to the status of a metro probate court. B. Metro Probate Jurisdiction. The jurisdiction of the probate court is stated at Ga. Const., Art. VI, § 3, 1 and O.C.G.A. § 15-9-30. Metro probate also has concurrent jurisdiction with the superior court to try facts to a jury, O.C.G.A. § 15-9-121, to resolve declaratory judgment actions, O.C.G.A. § 15-9-127, to resolve some actions with regard to trusts, O.C.G.A. § 15-9-127(4)-(6), and to resolve the settlement of accounts, O.C.G.A. § 53-7-160 (§ 53-7-60 in the New Probate Code -- Effective Date January 1, 1998). C. No Equity Jurisdiction. Unfortunately, when the General Assembly gave metro probate significantly expanded powers with regard to jury trials and concurrent jurisdiction, it failed to extend the additional necessary equitable powers to correct the simple problems that exist in probate actions. Metro probate has no equity jurisdiction. Lee v. Lee, 260 Ga. 356, 392 S.E.2d 870 (1990). The metro probate court is without jurisdiction to decide issues with regard to title to real or personal property, even if that property is properly before it in an estate. In Re: Estate of Adamson, 215 Ga. App. 613, 451 S.E.2d 501, 502 (1994). It is without jurisdiction to decide the issues with regard to an alleged indebtedness, even if that debt is squarely before it concerning an estate. Kidd v. Unger, 207 Ga. App. 109, 427 S.E.2d 82 (1993). It has no power to construe the meaning of wills. Simon v. Bunch, 260 Ga. 210, 391 S.E.2d 648 (1990). This shortsighted lack of jurisdiction is presently carried forward in the New Probate Code at O.C.G.A. § 53-7-75. In all accounting cases filed under the New Probate Code, the New Probate Code states that will construction issues "shall" be transferred to the superior court. Id. D. Superior Court by Designation. Presently the most effective method of resolving all jurisdictional and all transfer problems between the metro probate and superior courts, if you desire to remain in metro probate, is to seek to have the metro probate judge appointed by the Chief Judge of the Superior Court to sit by designation as a superior court in your probate case. This will cure all your jurisdictional problems. Given that this option contains the seeds of a vastly expanded workload for the court without the attendant probate staff increases, do not be surprised if this option meets, initially, with some hostility by the probate court. II. Common Probate Civil Problems A. Potential To Venue Shop. The gap period before the New Probate Code becomes effective on January 1, 1998, opens up some interesting horizons with regard to venue selection. If you bear in mind that presently 10 probate courts grant the right to a jury trial and 149 do not, it may be that the selection of venue becomes crucial concerning whether your client may obtain a jury trial. Existing O.C.G.A. § 53-7-120 provides for the transfer of probate proceedings from the residence of the testator to the residence of the executor, if the executor complies with the filing provisions of O.C.G.A. § 53-7-120(a) and (b). The Court of Appeals recently held in Rentz v. Blanton, 216 Ga. App. 396, 454 S.E.2d 606, 607 (1995), that the transfer is mandatory, once the filing requirements are met. This statute, however, will stand repealed as of January 1, 1998. See, Official Comments, to proposed O.C.G.A. § 53-7-45. In its stead comes a different, but at least as interesting, statute concerning venue selection. O.C.G.A. § 53-5-1 of the New Probate Code states that the "domicile" (prior Code stated "residence") of the testator gives rise to the jurisdiction of the probate court. However, if the testator was in a nursing home at the time of his or her death, proposed O.C.G.A. § 53-5-1, provides some leeway concerning jurisdiction in the county of the testator's residence prior to entering the nursing home or jurisdiction in the county where the nursing home is located. B. Discovery Is Not Uniform. Beware of the differences in discovery in probate court. In metro probate, you have six (6) months, similar to that available in superior court, regardless of whether you pray for a jury or not. Appendix "A," Rule 5, UPCR. However, in a rural probate court you only have a mere two (2) months and, should you need an extension, you need to seek it prior to the expiration of two (2) month discovery period. UPCR 5. C. Jury Trials. A probate court jury must be demanded immediately or it is waived. O.C.G.A. § 15-9-121 grants parties the right to seek a jury trial over factual disputes in probate, however, the right to trial by jury is deemed "waived and may not thereafter be asserted," if it is not asserted within thirty (30) days of the filing of the complaint or fifteen (15) days of the answer in metro probate. Appendix "A," UPCR 24; citing, O.C.G.A. § 15-9-121. In superior court, a jury trial exists as a matter of right, Ga. Const., 1983, Art. I, § I, ¶ 11. O.C.G.A. § 9-11-38. Erereke v. Obong, 265 Ga. 728, 462 S.E.2d 372, 373 (1995). It must be waived to be eliminated. O.C.G.A. § 9-11-39. D. Declaratory Judgment Actions. Contrary to the practice in some metro probate courts, you may not simply style your claim, "declaratory judgment," and invoke the jurisdiction of the metro probate court. Currently, metro probate's concurrent civil jurisdiction is limited to those areas in which the probate court has the underlying jurisdiction over an estate and then declaratory authority only to determine: 1) classes of creditors, etc.; 2) direct or prohibit executors from acting; and, 3) resolve questions arising during administration. O.C.G.A. § 15-9-127, in para materia, with O.C.G.A. § 9-4-4. The metro probate court's concurrent jurisdiction over trusts is limited to the replacement or resignation of trustees. O.C.G.A. § 53-12-170 and 175. (Given the equitable nature of trusts, O.C.G.A. § 53-12-4, no real expansion of jurisdiction in this area will occur without the General Assembly's grant of equitable powers to metro probate.) E. Transfer Is Your Friend. Whenever you are faced with a motion to dismiss based on jurisdictional grounds in metro probate, you are not without remedy. Simply move to transfer the claim to the appropriate court with jurisdiction. Whenever, "the probate court lacks jurisdiction over a claim or counterclaim, the proper procedure is not to dismiss the case but timely to 'transfer to the appropriate court in the state any civil case in which it determines that jurisdiction or venue lies elsewhere.'" Johnson v. Hamilton, 211 Ga. App. 268, 438 S.E.2d 715 (1993); citing, Ga. Const., 1983, Art. VI, § 1, ¶ 8. UTR, T-1 through T-13. Some metro probate courts will instruct you to dismiss instead of transfer; however, if you do dismiss keep in mind the backstop dismissal problems contained in O.C.G.A. § 9-11-41(a). F. No Court Reporter. Notwithstanding the fact that the probate court is a Court of Record, Propst, F. Handbook For Probate Judges of Georgia, at § 1.4, at the trial of a matter in metro probate you may not simply announce that you wish the matter taken down. No reporter will be made available to you. Surprisingly, UPCR 26 specifically states that you must provide your own court reporter for takedown at trial or a hearing in a metro probate court. G. Settlement of Minor's Tort Claims. You may find your ordinary civil case in probate based on a tort settlement involving a minor. Probate courts generally have exclusive control over the accounts held by guardian's of minors and guardians, generally, may settle the claims of minors. O.C.G.A. § 29-2-16. However, if you represent a minor's interest in active litigation, the superior court [assuming you are in the state system] and not the probate court must give approval to settle the minor's claim. King Cotton, Ltd. v. Powers, 200 Ga. App. 549, 409 S.E.2d 67 (1991); Lynn v. Wagstaff Motors, 126 Ga. App. 516, 518, 191 S.E.2d 324 (1972). III. Appellate Problems A. Metro Probate. Do not appeal probate "civil cases" to superior court. After the enactment of O.C.G.A. § 15-9-120 through 127, appeal in those "civil cases," as defined by O.C.G.A. § 15-9-120(1)(a), is either as a matter of right to the Georgia Supreme Court (1983, Ga. Const., Art VI, § 6, ¶ 3(3), "All cases involving wills,...") or Court of Appeals, O.C.G.A. § 5-6-34; or, in some cases, by they are appealable as a discretionary appeal under, O.C.G.A. § 5-6-35, e.g., an award of attorney's fees by the probate court pursuant to O.C.G.A. § 9-15-14. B. Rural Probate. There exists, in some circles, the belief that a run through a rural probate court is discovery for the real battle later in superior court. Such thinking is unprepared bravado at worst and foolhardy at best. While an appeal from an adverse ruling in a rural probate court is to the superior court as a matter of right and is a de novo investigation, the superior court sits only as a court of appellate jurisdiction. O.C.G.A. § 5-3-29 and O.C.G.A. § 29-5-11. If you pursue this strategy, you must raise all claims in probate. You cannot attempt to use the equitable power of the superior court to introduce new issues on de novo appeal. Mitchell v. Mitchell, 220 Ga. App. 682, 469 S.E.2d 540, 542 (1995). Some flexibility in this area exists, however. In a case that was decided on the law that existed prior to 1986, Lee v. Wainwright, 256 Ga. 478, 350 S.E.2d 238 (1986), the Supreme Court allowed an amendment to a caveat and new evidence, another will, to be introduced on appeal to the superior court, when it was merely couched as only introducing new additional "competent evidence." The date of the final order controls the date of any appeal. In a rural probate court, a motion for new trial will not extend the time to file an appeal, but will do so in a metro probate. Jabaley v. Jabaley, 208 Ga. App. 179, 430 S.E.2d 179 (1993). IV. Conclusion. The General Assembly should grant the necessary equitable and plenary powers to metro probate courts to eliminate the jurisdictional problems that arise with regard to concurrent civil jurisdiction. Until such time as the General Assembly acts to fully and completely solve these problems, the practitioner should carefully evaluate his or her case prior to filing to determine how best to navigate the metro probate. If you find your claim may be brought in metro probate, you may have the option of the selection of superior court or metro probate by transfer and you have some control over venue selection. If you find your claim in rural probate, be cognizant to raise all claims at the outset and be apprised of the two (2) month limitation on discovery. If you must bring an appeal from either metro or rural probate, examine your appellate jurisdiction very carefully. You need to be able to determine at the date of the final order, whether your appeal lies to superior court, the Court of Appeals or the Supreme Court.
1. The 1995 Census estimates for those counties were: Cherokee: 114,751; Hall: 108,238; Houston: 99,647. 1995 Census, Georgia by County estimates, U.S. Bureau of the Census. O.C.G.A. § 1-3-1(D) appears to apply the effective date of the elevation of these courts to concurrent jurisdiction. Barring any intervening change by the General Assembly, the effective date would be July 1, 2002. 2. Except in the narrowly drawn circumstances of declaratory judgment actions filed under O.C.G.A. § 15-9-127(1) and O.C.G.A. § 9-4-4. 3. In superior court, you may demand a jury up and until the call of the case. Carlton v. State, 176 Ga. App. 399, 336 S.E.2d 333 (1985). 4. The bar seems to be aware of the initial jury demand, but pro se litigants frequently file untimely demands. Interview with the Honorable David Dodd, Judge, Cobb Probate Court. October 23, 1996. 5. Titles to land and disputes over trusts generate the majority of jurisdictional problems in concurrent jurisdiction. Dodd Interview, Supra. 6. Unofficial Opinion of Attorney General to DeKalb Probate Court, dated June 30, 1986, discusses at length which non-civil cases remain appealable to the superior courts as opposed to appellate courts. Notice: Disclaimer of Attorney Client Relationship by mere use of this website. The mere reading or accessing this website does not create an attorney client relationship. Emailing the firm or using the legal forms posted does not constitute and create an attorney client relationship. If you would like to inquire about possible legal representation, please be aware that we cannot represent you until we know that doing so will not create a conflict of interest for you or our present clients. If you wish to initiate an attorney client relationship, we need the opportunity to conduct a conflict search, review your case and materials and, if appropriate in your situation, complete an engagement letter. Additionally, any information presented on this site is the opinion of the author and does not necessarily reflect the opinions of Wood & Meredith, LLP. These articles posted are not intended to provide specific legal or tax advice, but are intended only to generally familiarize the reader with the subject matter. Matters of specific legal or tax nature should be discussed with a competent attorney or tax professional specializing in that particular field or practice. All use of this website is subject to the Contract of Terms.
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