TITLE THROUGH DECEDENTS’ ESTATES



13.1 Judgments Against Heirs or Devisees


Judgments against the heirs or devisees of an estate do not constitute a lien on land sold by the personal representative (executor or administrator) of such estate, and the examiner need not conduct a search therefor in any of the following circumstances:

1. The sale is made by an executor pursuant to express authority in the will and the sale is made to parties other than the heirs or devisees; or

2. The sale is made by an executor with the unanimous consent of the beneficiaries under the will as evidenced by a court order; or

3. The sale is made by an executor or administrator which has been given the power of sale (and usually other powers) by court order with the unanimous consent of the beneficiaries or heirs. Comment: The personal representative (executor or administrator) of an estate may be given the power of sale and other powers with the unanimous consent of the beneficiaries or heirs by court order pursuant to O.C.G.A. Section 53-7-1(b). The court order may simply indicate that the powers itemized in O.C.G.A. Section 53-12-232 have been granted to the personal representative.

13.2 Surviving Widow, Widower or Minor Children


Where facts show that a decedent has left a surviving widow, widower or minor children, inquiry and examination should be made concerning the rights of said widow, widower or minor children to year’s support and in case of intestacies, inquiry should be made concerning the right of the widow or widower for a child’s part in said estate. Comment: Pursuant to O.C.G.A. Section 53-3-1(b)(1), any person who becomes widowed is entitled to a year’s support from the estate of the deceased spouse. The surviving spouse, whether husband or wife, is entitled to obtain this support. Hunnicutt v. Hunnicutt, 180 Ga. App. 798, 350 S.E.2d 770 (1986). O.C.G.A. Section 53-2-1 states the intestate succession rules for children when a parent dies leaving a surviving spouse. These rules would govern the entitlement of a widow or widower to a child’s share.

13.3 No Will, No Administration, Death Within Twelve Months


Where a decedent leaves no will and there has been no administration on his estate and death has occurred within twelve months, a marketable title may be conveyed by : (1) proof showing the death intestate, identifying the decedent’s heirs at law and showing them to be of age and of sound mind (such proof should be in the form of affidavits recordable under O.C.G.A. Section 44-2-20), (2) a conveyance from the above heirs at law as identified by the proof, provided that they are of age and of sound mind, (3) the entry of an order from the Probate Court dispensing with the administration upon the estate of the decedent, and (4) proof that federal estate taxes cannot result in a lien against the property. Comment: Prior to 1998, title to real property in an intestate estate vested in the heirs immediately upon the decedent’s death “subject to be administered by the legal representative, if any....” Former O.C.G.A. Section 53-4-8. The Revised Probate Code of 1998 caused title to the real property of an intestate decedent to be treated the same as a decedent who died with a will and to vest in the administrator, who would then assent to the transfer to the heirs. O.C.G.A. Section 53-2-7 (effective January 1, 1998). In 2000, this section was again amended in an effort to reinstate the prior law but added some confusion by providing that title to the intestate decedent’s real property vests immediately in the heirs of the decedent, “subject to divestment by the appointment of an administrator of the estate.” There is no time limitation in which an administrator must be appointed under this statute. Comment: Issues may arise when it is assumed that the decedent died intestate but a will is later offered for probate. O.C.G.A. Section 53-5-3 provides a five year period beyond which a will may not be probated. However, the five year period does not begin to run until the filing of a petition for one of the following: (1) the appointment of a personal representative (administrator) for the estate; or (2) an order for year’s support; or (3) an order that no administration is necessary.

For decedents who died prior to January 1, 1998, a will can be offered for probate until the later of such five year period or December 31, 2002.

13.4 No Will, No Administration, Death From One to Three Years Past


Where a decedent leaves no will and there has been no administration on his estate and death has occurred from one to three years past, a marketable title may be conveyed by: (1) proof showing the death intestate, identifying the decedent’s heirs at law and showing them to be of age and of sound mind (such proof should be in the form of affidavits recordable under O.C.G.A. Section 44-2-20), (2) a conveyance from the above heirs at law as identified by the proof, provided that they are of age and of sound mind, (3) either the entry of an order from the Probate Court dispensing with the administration upon the estate of the decedent or an indemnify agreement, escrow deposit or surety bond indemnifying the grantee and his successors in title against any debts of the estate of the decedent, and (4) proof that federal estate taxes cannot result in a lien against the property.

13.5 No Will, No Administration, Death More Than Three Years Past


Where a decedent leaves no will and there has been no administration on his estate and death has occurred more than three years past, a marketable title may be conveyed by: (1) proof showing the death intestate, identifying decedent’s heirs at law and showing them to be of age and of sound mind (such proof should be in the form of affidavits recordable under O.C.G.A. Section 44-2-20), (2) a conveyance form the above heirs at law a identified by the proof, provided that they are of age and of sound mind, (3) proof being furnished that all debts of the estate of the decedent have been fully paid, and (4) proof that federal estate taxes cannot result in a lien against the property.

13.6 No Will, Administration Pending on Estate — Public Sale by Administrator


Where decedent leaves no will and where there is an administration pending on his estate, a marketable title may be conveyed in either of the following manners:

(A) Sale pursuant to specific court order which requires (1) a court order which sets forth the specific terms and conditions of the sale, (2) a deed from the personal representative (administrator) pursuant to such court order, (3) a determination that no application for year’s support has been made, and (4) proof that federal estate taxes cannot result in a lien against the property; or

(B) Sale pursuant to power of sale which requires (1) a court order giving the personal representative the power of sale (and usually other powers), (2) a deed from the personal representative, (3) a determination that no application for year’s support has been made, and (4) proof that federal estate taxes cannot result in a lien against the property.

Comment: A surviving spouse or minor child cannot attach a lien for a year’s support to property that is conveyed by the executor or administrator in an authorized sale. O.C.G.A. Section 53-3-13. See Comment under 13.1 above regarding the grant of powers to personal representatives by court order with the unanimous consent of the heirs.

13.7 No Will, Administration Pending on Estate-Sale by Heirs at Law with Disclaimer by Administrator


Where a decedent leaves no will and there is an administration pending on his estate, a marketable title may be conveyed by: (1) proof showing the death intestate, identifying the decedent’s heirs at law and showing them to be of age and of sound mind (such proof should be in the form of affidavits recordable under O.C.G.A. Section 44-2-20), (2) a conveyance from the above heirs at law as identified by the proof, provided that they are of age and of sound mind, (3) a conveyance from the Administrator to disclaim any administrative rights therein, (4) the furnishing of an indemnity agreement, escrow deposit or surety bond indemnifying the grantee and his successors in title against any debts of the estate of the decedent, and (5) proof that federal estate taxes cannot result in a lien against the property.

13.8 No Will, But Administrator Discharged Prior to Sale


Where a decedent leaves no will and there has been an administration on his estate but the administrator has been discharged, a marketable title may be conveyed by: (1) proof showing the death intestate, identifying the decedent’s heirs at law and showing them to be of age and of sound mind (such proof should be in the form of affidavits recordable under O.C.G.A. Section 44-2-20), (2) a conveyance from the above heirs at law as identified by the proof, provided that they are of age and of sound mind, and (3) proof that federal estate taxes cannot result in a lien against the property.

Comment: O.C.G.A. Section 53-8-15(c) provides that “In the absence of prior assent, the discharge of a personal representative shall be conclusive evidence of the personal representative’s assent.”

13.9 Will Probated in Solemn Form Authorizes Sale —


Executor Qualified Within Past Six Months Where a decedent leaves a will which has been probated in solemn form and the executor has qualified within the past six months and the will authorizes sale, a marketable title may be conveyed by: (1) a deed from the executor containing recitals showing that it is made pursuant to the power of sale conferred under the terms of the will of the decedent, joined in by the beneficiary of any specific devise of the land to be conveyed, (2 a determination that no application for year’s support has been made, and (3) proof that federal estate taxes cannot result in a lien against the property. Comment: A surviving spouse or minor child cannot attach a lien for a year’s support to property that is conveyed by the executor or administrator in an authorized sale before the year’s support is set aside. O.C.G.A. Section 53-3-13.

13.10 Will Probated in Solemn form Does Not Authorize Sale — Executor Qualified Within Past Six Months


Where a decedent leaves a will which has been probated in solemn form and the executor has qualified within the past six months but the will does not authorize a sale, a marketable title may be conveyed in any of the following manners: (A) conveyance by executor and all devisees which requires (1) a deed from the executor and all devisees of the property to be conveyed, (2) a determination that no application for year’s support has been made, (3) the furnishing of an indemnity agreement, escrow deposit or surety bond indemnifying the grantee and his successors in title against any debts of the estate of the decedent, and (4) proof that federal estate taxes cannot result in a lien against the property; or (B) conveyance by executor pursuant to a court order specifically authorizing such sale which requires (1) a court order obtained pursuant to O.C.G.A. Section 53-8-13 which authorizes the specific sale, (2) a deed from the executor pursuant to such court order, (3) a determination that no application for year’s support has been made, (4) the furnishing of an indemnity agreement, escrow deposit or surety bond indemnifying the grantee and his successors in title against any debts of the estate of the decedent, and (5) proof that federal estate taxes cannot result in a lien against the property: or (C) conveyance by executor pursuant to a court order granting a general power of sale which requires (1) a court order obtained with the unanimous consent of the beneficiaries pursuant to O.C.G.A Section 53-7-1(b) granting the power of sale, (2) a deed from the executor pursuant to such court order, (3) a determination that no application for year’s support has been made, (4) the furnishing of an indemnity agreement, escrow deposit or surety bond indemnifying the grantee and his successors in title against any debts of the estate of the decedent, and (5) proof that federal estate taxes cannot result in a lien against the property.

Comment: O.C.G.A. Section 53-5-14 (now 53-3-13) was not intended to exempt devises and legacies from year’s support. Anderson v. Groover, 242 Ga. 50, 247 S.E.2d 851 (1978).

13.11 Will Probated in Solemn Form Authorizes Sale — Executor Qualified More Than Six Months — No Assent to Devise


Where a decedent leaves a will which has been probated in solemn form and the executor has been qualified more than six months and the will authorizes a sale, a marketable title may be conveyed by: (1) a deed from the executor containing recitals showing that it is made pursuant to the power of sale conferred under the terms of the will of the decedent, (2) a determination that no application for a year’s support has been made, (3) proof in the form of an affidavit recordable under O.C.G.A. Section 44-2-20 that the executor of the will has not assented to any general devise of the property under the will and that the property now remains in his hands for administration, (if the land to be conveyed is the subject of a specific devise, the devisee(s) should join in the deed) and (4) proof that federal estate taxes cannot result in a lien against the property.

13.12 Will Probated in Solemn Form Authorizes Sale — Executor Qualified More than Six Months — Deed From Executor and All Devisees



Where a decedent leaves a will which has been probated in solemn form and the executor has been qualified for more than six months, and the will authorizes a sale, a marketable title may be conveyed by: (1) a deed from the executor in which all of the devisees of the property to be conveyed join as grantors, (2) a determination that no application for year’s support has been made, (3) proof that all debts of the estate have been fully paid, and (4) proof that federal estate taxes cannot result in a lien against the property.

13.13 Will Probated in Solemn Form Does Not Authorize Sale —


Executor Qualified For More than Six Months Where a decedent leaves a will which has been probated in solemn form and the executor has been qualified for more than six months and the will does not authorize a sale, marketable title may be conveyed in any of the following manners:

(A) conveyance by executor and all devisees which requires (1) a deed from the executor and all devisees of the property to be conveyed under the will, (2) a determination that no application for year’s support has been made, (3) proof that all debts of the estate have been fully paid, and (4) proof that federal estate taxes cannot result in a lien against the property; or

(B) conveyance by executor pursuant to a court order specifically authorizing such sale which requires (1) a court order obtained pursuant to O.C.G.A. Section 53-8-13 which authorizes the specific sale, (2) a deed from the executor pursuant to such court order, (3) a determination that no application for year’s support has been made, (4) proof that all debts of the estate have been fully paid, and (5) proof that federal estate taxes cannot result in a lien against the property: or

(C) conveyance by executor pursuant to a court order granting a general power of sale which requires (1) a court order obtained with the unanimous consent of the beneficiaries pursuant to O.C.G.A Section 53-7-1(b) granting the power of sale, (2) a deed from the executor pursuant to such court order, (3) a determination that no application for year’s support has been made, (4) proof that all debts of the estate have been fully paid, and (5) proof that federal estate taxes cannot result in a lien against the property.

13.14 Will Probated in Common Form


Where a decedent leaves a will which has been probated in common form on or after July 1, 1984, it is conclusive after the passage of four years except as against minor heirs. Minor heirs have four years from the later of (a) coming of age with no other disability, or (b) four years after probate of the will in common form, within which to contest the will. Where a decedent leaves a will which has been probated in common form before July 1, 1984, it is conclusive after the earlier of July 1, 1988 or the expiration of seven years from the date of probate except as against minor heirs. Minor heirs have four years from the later of (a) coming of age with no disability, or (b) the date which is the earlier of July 1, 1984 or seven years after the date of the probate. Title which is obtained through the probate of a will in common form should not be accepted unless proof is obtained that all heirs were of age at the time of the probate and four years have passed. The probate of the will in solemn form should be required where four years have not elapsed or proof should be obtained as to the identity of all heirs and the appropriate deeds should be obtained from all heirs.

Comment: Pursuant to O.C.G.A. Section 53-5-19, when a will is probated in common form and is not attacked for four years, it is conclusive against all parties except minor heirs. It will also be conclusive four years after the year in which all minors have reached the age of majority. Prior to the 1984 amendment of this Code Section, the period required for conclusiveness of the probate was seven years, but minors coming of age with no disability had four years after reaching maturity in which to interpose a caveat to the probate. See Anderson v. Green, 46 Ga. 361 (1872); Churchill v. Corker, 25 Ga. 479 (1858). This Standard was cited in Alston v. Stubbs, 170 Ga. App. 4417, 317 S.E.2d 272 (1984), in supporting a claim for cost of litigation in defending third-party action as a result of negligence of attorney in failure to comply with this Standard.

NOTE: Testamentary trusts are dealt with in Chapter 29 on Trusts.