Wood & Meredith,
LLP. - http://www.woodandmeredith.com/ |
Relevant Provisions of the Georgia Probate Code (2008).
Title 53. WILLS, TRUSTS, AND ADMINISTRATION OF ESTATES
Chapter 11. PROCEEDINGS IN PROBATE COURT
Current through the 2006 Legislative Session
OCGA § 53-11-1. Applicability Of, And Compliance With, Provisions.
Except as otherwise specifically provided, the provisions of this chapter shall apply to any proceeding in the probate court that arises under Chapters 1 through 10 of this title. Compliance with the provisions of this chapter shall be deemed to be sufficient for proceedings in the probate court arising under Chapters 1 through 10 of this title except as otherwise provided in those chapters and in Chapter 11 of Title 9 and Chapter 9 of Title 15.
OCGA § 53-11-2. "Guardian" Defined; Persons Represented; Appointment; Successors; Guardian Named In Petitions.
(a) As used in this Code section, the term "guardian" means the guardian ad litem appointed by the probate court who may represent a single party or more than one party or a class of parties with common or nonadverse interests; provided, however, that the court may determine for the purpose of the particular proceeding that the natural guardian, if any, or the testamentary guardian, if any, or the duly constituted guardian of the property, if any, or the duly constituted guardian of the person, if any, has no conflict of interest and thus may represent for the purpose of the proceeding a party who is not sui juris, who is unborn, or who is unknown.
(b) When a party to a proceeding in the probate court is not sui juris, is unborn, or is unknown, that party shall be represented in the proceeding by a guardian. Service upon or notice to a guardian shall constitute service upon or notice to the party represented and no additional service upon or notice to such party shall be required. Waivers, acknowledgments, consents, answers, objections, or other documents executed by the guardian shall be binding upon the party represented.
(c) Whenever a guardian ad litem is appointed, the court may limit the appointment or may at any time for cause appoint a successor.
Unless the appointment is limited by the court, the guardian ad litem first appointed with respect to any proceeding involving the administration of the estate shall continue to serve with respect to such proceeding on behalf of the party represented until a successor is appointed, the party represented becomes sui juris, or the court terminates the appointment.
(d) In every petition filed in the probate court, the petitioner shall specify the name of each party who requires a guardian and the name and address of any person who is acting as guardian of the party. A copy of the letters appointing the guardian shall be attached to the petition or the petition shall allege such facts as shall show the authority of such guardian to act; provided, however, that the probate court may take judicial notice of the issuance of such letters or of such authority.
OCGA § 53-11-3. Personal Service; Generally.
(a) Except as otherwise prescribed by law or directed by the probate judge, a party in interest who is a resident of this state is entitled to personal service of any petition and citation for proceedings that are subject to the provisions of this chapter.
(b) Except as otherwise provided in this Code section, personal service shall be made by delivery of a copy of the petition and citation by the sheriff or some other lawful officer at least ten days before the hearing except that, if waived in writing, the ten-day provision shall not apply. An entry of such service shall be made on the original and the copy for the party served.
(c) A party who is in the military service may be served by any commissioned officer who shall file with the probate court a certificate stating that copies of the petition and citation were served in person.
(d) Individuals who are not sui juris shall be served as provided in this chapter or as provided in Code Section 15-9-17.
(e) When personal service is required by this Code section, unless otherwise directed by the probate court, service may be made by registered or certified mail or statutory overnight delivery if the petitioner so requests in the petition. The court shall cause a copy of the petition and the citation to be sent by registered or certified mail or statutory overnight delivery with return receipt requested and with delivery restricted to addressee only. If the return receipt is not signed by the addressee, dated at least ten days before the date specified in the citation, and received by the court before the date specified in the citation for the filing of objections, service shall be made as otherwise required by this Code section.
OCGA § 53-11-4. Service Where Person Or Residence Unknown, Or Resides Outside State.
(a) Except as otherwise prescribed by law or directed by the probate judge pursuant to Code Section 53-11-5, the provisions of this Code section shall apply in cases when a person to be served has a known current residence address outside this state, or whose current residence address is unknown.
(b) Unless all such persons have known current residence addresses, the probate court shall order service to be perfected by publication of the citation in the newspaper in which sheriff s advertisements are published in the county in which the petition is made. The citation shall be published once a week for four weeks prior to the date on which objections must be filed. The records of the court shall show the persons notified and the character of the notice given. The published citation shall be directed to the person to be served .
(c) If the current residence address of such a person is known, service shall be made by mailing by certified or registered mail or statutory overnight delivery, return receipt requested, a copy of the petition and the citation.
(d) When service by publication is ordered pursuant to this Code section, compliance with the provisions of this Code section relating to a person to be notified who is known but whose current residence address is unknown shall be equivalent to personal service of a copy of the petition and citation when the fact appears in the records of the court showing the persons notified and the character of the notice given. In the case of a known person whose current residence address is unknown, that person s name shall appear in the records of the court, and such records shall show as to that person compliance with this Code section. In any case in which service by publication is granted, one order for publication shall be sufficient and the published citation shall be directed as provided in subsection (b) of this Code section.
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History. Amended by 2002 Ga. Laws 968, OCGA §6, eff. 7/1/2002.
OCGA § 53-11-5. Additional Service Or Notice.
The probate judge may direct any additional service or notice or extend the time to respond with respect to any proceedings covered by this chapter as the judge may determine to be proper in the interests of due process and reasonable opportunity for any party or interest to be heard.
OCGA § 53-11-6. Waiver Or Acknowledgment Of Service Or Notice; Consent To Granting Of Relief Or Entry Of Order.
(a) Service or notice may be waived or acknowledged before or after the filing of the petition. The waiver or acknowledgment shall be in a writing signed by the person to be served or some person authorized by the person to be served, shall be sworn to or affirmed before the probate court or a notary public, and shall be filed with the probate court.
(b) Except as otherwise prescribed by law, the written consent of a party to the granting of any relief or the entry of any order sought in a proceeding, whether executed before or after the filing of the petition, shall constitute a waiver and acknowledgment of notice and service of the proceedings, waiver of citation, entry of appearance, answer admitting all allegations of fact set forth in the petition as true and correct, and consent to the granting of the relief or the order sought.
(c) A person in military service, regardless of age, shall be permitted to make any waiver, acknowledgment, or consent described in this Code section.
OCGA § 53-11-7. Officers Authorized To Administer Oath Or Affirmation Or Affidavit.
An oath or affirmation or affidavit required or allowed to be made before or attested by a notary public may be made before any notary public or other officer authorized to administer oaths by the state in which the oath or affirmation or affidavit is made. The oath or affirmation or affidavit, if made outside this state, shall have the same force and effect as if it had been made before an officer of this state authorized to administer oaths. The official attestation of the officer before whom the oath or affirmation or affidavit is made shall be prima-facie evidence of the official character of the officer and that the officer was authorized by law to administer oaths.
OCGA § 53-11-8. Verification Of Petitions.
Every petition filed in the probate court shall be verified by the oath of the petitioner and shall be sworn to or affirmed before the probate court or a notary public.
OCGA § 53-11-9. Issuance Of Citation Upon Filing Of Petition; Contents; Meaning.
(a) Upon the filing of a petition, a citation shall be issued addressed to the persons required to be served or entitled to notice; provided, however, if all parties have acknowledged service and assented to the petition, no citation need issue. The citation shall state that any objection must be made in writing and shall designate the date on or before which objections must be filed in the probate court. The citation also shall state whether the hearing will take place on a certain date or be specially scheduled for a later date. With respect to all proceedings under this title, the citation, if any, may state that if no objections are filed the petition may be granted without a hearing.
(b) For purposes of this chapter, the words "citation" and "notice" shall have the same meaning unless the context otherwise requires.
OCGA § 53-11-10. Date By Which Objections Must Be Filed Or On Which Hearing Will Be Held.
(a) Except as otherwise prescribed by law or directed by the judge pursuant to Code Section 53-11-5 with respect to any particular proceeding, the date on or before which any objection is required to be filed shall be not less than ten days after the date the person is personally served. For persons within the continental United States who are served by registered or certified mail or statutory overnight delivery, return receipt requested, the date on or before any objection is required to be filed shall not be less than 13 days from the date of mailing; provided, however, that if a return receipt from any recipient is received by the court within 13 days from the date of mailing, the date on or before any objection is required to be filed by such recipient shall be ten days from the date of receipt shown on such return receipt. For a person outside the continental United States who is served by registered or certified mail or statutory overnight delivery, return receipt requested, the date on or before any objection is required to be filed shall not be less than 30 days from the date the citation is mailed; provided, however, that if the return receipt from any recipient is received by the court during such 30 day period the date on or before which any objection is required to be filed by such recipient shall not be earlier than ten days from the date of receipt shown on such return receipt. For a person served by publication, the date on or before which any objection is required to be filed shall be no sooner than the first day of the week following publication once each week for four weeks.
(b) Except as otherwise prescribed by law or directed by the judge with respect to any particular proceeding, the date on which any required hearing shall be held shall be the date by which any objection is required to be filed or such later date as the probate court may specify. When the matter is set for hearing on a date that was not specified in the citation, the probate court shall send by first-class mail a notice of the time of the hearing to the petitioner and all parties who have served responses at the addresses given by them in their pleadings.
OCGA § 53-11-11. Authentication Or Exemplification Of Document.
Whenever it is required that a document to be filed in the probate court be authenticated or exemplified, such requirement shall be met by complying with the provisions of Code Section 24-7-24 and such full faith and credit shall be given to the document as is provided in that Code section.
Wood & Meredith,
LLP. - http://www.woodandmeredith.com/ |