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Georgia Statutes, Title 53

Georgia/Statutes

← All Georgia coverage

Title 53

13 chapters · 484 sections in this title.

All chapters in Title 53484 Ch 12, TRUSTS160 Ch 7, ADMINISTRATION OF ESTATES GENERALLY61 Ch 5, PROBATE54 Ch 4, WILLS49 Ch 6, ADMINISTRATORS AND PERSONAL REPRESEN…38 Ch 2, DESCENT AND DISTRIBUTION23 Ch 3, YEAR’S SUPPORT22 Ch 13, REVISED UNIFORM FIDUCIARY ACCESS TO …18 Ch 9, MISSING PERSONS AND PERSONS BELIEVED…17 Ch 1, GENERAL PROVISIONS14 Ch 8, INVESTMENTS, SALES, AND CONVEYANCES11 Ch 11, PROCEEDINGS IN PROBATE COURT11 Ch 10, SIMULTANEOUS DEATH6

49 sections·Filtered byTitle 53✕Ch 4✕

O.C.G.A. § 53-4-1 Power of testator
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A testator, by will, may make any disposition of property that is not inconsistent with the laws or contrary to the public policy of the state and may give all the property to strangers, to the exclusion of the testator’s spouse and descendants. History. — Code 1981, § 53-4-1, en…
O.C.G.A. § 53-4-2 When will takes effect
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A will shall take effect instantly upon the death of the testator however long probate may be postponed. History. — Code 1981, § 53-4-2, enacted by Ga. L. 1996, p. 504, § 10.
O.C.G.A. § 53-4-3 Determination whether instrument is will
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No particular form is necessary to constitute a will. To determine whether an instrument is a will, the test is the intention of the maker to be gathered from the whole instrument, read in light of the surrounding circumstances. If the intention is to convey a present interest, t…
O.C.G.A. § 53-4-4 Incorporation of extrinsic documents into will
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(a) Any writing in existence when a will is executed may be incorporated into the will by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identiﬁcation. (b) This Code section shall not be construed to imply that the…

O.C.G.A. § 53-4-5 Written statement or list disposing of items of tangible personal property

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(a) A written statement or list meeting the requirements of subsection (b) of this Code section shall dispose of items of tangible personal property, other than money, not otherwise speciﬁcally disposed of by the testator’s will. If more than one otherwise effective writing exist…

O.C.G.A. § 53-4-10 Minimum age; conviction of crime

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(a) Every individual 14 years of age or older may make a will, unless laboring under some legal disability arising either from a want of capacity or a want of perfect liberty of action. (b) An individual who has been convicted of a crime shall not be deprived of the power to make…

O.C.G.A. § 53-4-11 Decided and rational desire; incapacity to contract; insanity; advanced age or eccentricity

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(a) Testamentary capacity exists when the testator has a decided and rational desire as to the disposition of property. (b) An incapacity to contract may coexist with the capacity to make a will. (c) An insane individual generally may not make a will except during a lucid interva…

O.C.G.A. § 53-4-12 Freedom of volition

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A will must be freely and voluntarily executed. A will is not valid if anything destroys the testator’s freedom of volition, such as fraudulent practices upon the testator’s fears, affections, or sympathies; misrepresentation; duress; or undue inﬂuence whereby the will of another…

O.C.G.A. § 53-4-21 Knowledge of contents of will by testator

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Knowledge of the contents of a will by the testator is necessary to the validity of a will. If the testator can read, the testator’s signature or acknowledgment of that signature is presumed to show such knowledge. History. — Code 1981, § 53-4-21, enacted by Ga. L. 1996, p. 504, …

O.C.G.A. § 53-4-22 Competency of witness

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(a) Any individual who is competent to be a witness and age 14 or over may witness a will. (b) If a witness is competent at the time of attesting the will, the subsequent incompetence of the witness shall not prevent the probate of the will. History. — Code 1981, § 53-4-22, enact…

O.C.G.A. § 53-4-23 Testamentary gift to witness or witness’s spouse

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(a) If a subscribing witness is also a beneﬁciary under the will, the witness shall be competent; but the testamentary gift to the witness shall be void unless there are at least two other subscribing witnesses to the will who are not beneﬁciaries under the will. (b) An individua…

O.C.G.A. § 53-4-30 Contract concerning succession

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A contract made on or after January 1, 1998, that obligates an individual to make a will or a testamentary disposition, not to revoke a will or a testamentary disposition, or to die intestate shall be express and shall be in a writing that is signed by the obligor. History. — Cod…

O.C.G.A. § 53-4-31 Deﬁnitions

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(a) A joint will is one will signed by two or more testators that deals with the distribution of the property of each testator. A joint will may be probated as each testator’s will. (b) Mutual wills are separate wills of two or more testators that make reciprocal dispositions of …

O.C.G.A. § 53-4-32 Effect of execution

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The execution of a joint will or of mutual wills does not create a presumption of a contract not to revoke the will or wills. History. — Code 1981, § 53-4-32, enacted by Ga. L. 1996, p. 504, § 10. COMMENT This section clariﬁes that the execution of joint or mutual wills does not …

O.C.G.A. § 53-4-33 Revocation

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(a) A joint will or mutual wills may be revoked by any testator in the same manner as any other will. (b) Revocation of a joint will or a mutual will by one of the testators shall not revoke the will of any other testator. History. — Code 1981, § 53-4-33, enacted by Ga. L. 1996, …

O.C.G.A. § 53-4-40 Power of testator

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A will may be changed or revoked by the testator at any time prior to the testator’s death. History. — Code 1981, § 53-4-40, enacted by Ga. L. 1996, p. 504, § 10.

O.C.G.A. § 53-4-41 Intent

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In all cases of revocation, the intent to revoke is necessary. History. — Code 1981, § 53-4-41, enacted by Ga. L. 1996, p. 504, § 10. COMMENT This section carries forward the ﬁrst sentence of former OCGA Sec. 53-2-71. The second section of the former Code section, which provided …

O.C.G.A. § 53-4-43 Subsequent will or other written instrument

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An express revocation may be effected by a subsequent will or other written instrument that is executed, subscribed, and attested with the same formality as required for a will. History. — Code 1981, § 53-4-43, enacted by Ga. L. 1996, p. 504, § 10. COMMENT This section carries fo…

O.C.G.A. § 53-4-44 Destruction or obliteration of will or material portion thereof

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An express revocation may be effected by any destruction or obliteration of the will done by the testator with an intent to revoke or by another at the testator’s direction. The intent to revoke shall be presumed from the obliteration or cancellation of a material portion of the …

O.C.G.A. § 53-4-45 Revival or republication of previous will

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(a) If a will or other written instrument that expressly revoked a previous will in its entirety is revoked by a later will or other written instrument, as described in Code Section 53-4-43, the previous will remains revoked unless it is revived. The previous will is revived if i…

O.C.G.A. § 53-4-46 Presumption of intent

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(a) A presumption of intent to revoke arises if the original of a testator’s will cannot be found to probate. (b) A copy of a will may be offered for probate in accordance with Chapter 5 of this title in lieu of the original will if the original cannot be found to probate, provid…

O.C.G.A. § 53-4-47 Effect of implied revocation

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An implied revocation extends only so far as an inconsistency exists between testamentary instruments. Any portion of a prior instrument that can stand consistently with the testamentary scheme in a subsequent instrument shall remain unrevoked. History. — Code 1981, § 53-4-47, en…

O.C.G.A. § 53-4-48 Effect of testator’s marriage, or birth or adoption of child; provision in will for class of children

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(a) Except as otherwise provided in Code Section 53-4-49, the marriage of the testator, the birth of a child to the testator, including a posthumous child born within ten months of the testator’s death, or the adoption of a child by the testator subsequent to the making of a will…

O.C.G.A. § 53-4-49 Effect of testator’s divorce, annulment, or remarriage to former spouse

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All provisions of a will made prior to a testator’s ﬁnal divorce or the annulment of the testator’s marriage in which no provision is made in contemplation of such event shall take effect as if the former spouse had predeceased the testator, and the provisions of Code Section 53-…

O.C.G.A. § 53-4-55 Construction of wills; intention of testator

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In the construction of all wills, the court shall seek diligently for the intention of the testator and shall give effect to such intention as far as it may be consistent with the rules of law. Provided the proof of intention is clear and convincing, the court may transpose sente…

O.C.G.A. § 53-4-56 Construction of wills; parol evidence

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In construing a will, the court may hear parol evidence of the circumstances surrounding the testator at the time of execution to explain all ambiguities, whether latent or patent. History. — Code 1981, § 53-4-56, enacted by Ga. L. 1996, p. 504, § 10. COMMENT This section carries…

O.C.G.A. § 53-4-57 Partial illegality of will

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If a will is illegal in part, the part that is legal may be sustained; but if the whole will so constitutes one testamentary scheme that the legal portion alone cannot give effect to the testator’s intention, the whole will shall fail. History. — Code 1981, § 53-4-57, enacted by …

O.C.G.A. § 53-4-58 Failure to provide for living child believed dead

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If at the time of execution of the will the testator fails to provide in the will for a living child of the testator solely because the testator believes the child to be dead, the child is entitled to receive a share in the estate as follows: (1) If the testator had no other chil…

O.C.G.A. § 53-4-59 Speciﬁc, demonstrative, general, or residuary testamentary gifts

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Testamentary gifts may be speciﬁc, demonstrative, general, or residuary. A speciﬁc testamentary gift directs the delivery of property particularly designated. A demonstrative testamentary gift designates the fund or property from which the gift is to be satisﬁed but nevertheless …

O.C.G.A. § 53-4-60 Income, proﬁt, or increase of speciﬁc testamentary gifts

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The income, proﬁt, or increase of speciﬁc testamentary gifts, as a general rule, goes with the gift though the time of enjoyment or vesting may be postponed. History. — Code 1981, § 53-4-60, enacted by Ga. L. 1996, p. 504, § 10.

O.C.G.A. § 53-4-61 Time at which general or demonstrative testamentary gift bears interest

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(a) A general or demonstrative testamentary gift usually bears interest at the legal rate after the expiration of 12 months from the death of the testator; provided, however, that when a general or demonstrative testamentary gift is to be paid at a later time or upon a later even…

O.C.G.A. § 53-4-62 Testamentary gift to charity

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If a testamentary gift to a charity cannot be executed in the exact manner provided by the testator, the superior court may exercise equitable powers in such a way as will as nearly as possible effectuate the intention of the testator. History. — Code 1981, § 53-4-62, enacted by …

O.C.G.A. § 53-4-63 Payment of debts of testator and expenses of estate administrator

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(a) Unless otherwise directed, the debts of the testator and expenses of administration of the estate shall be paid out of the residuum. Unless otherwise provided in the will, a residuary gift or any part thereof, including a residuary gift to a surviving spouse in lieu of year’s…

O.C.G.A. § 53-4-64 Death of beneﬁciary before will executed or before death of testator

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(a) If a beneﬁciary is dead when the will is executed or otherwise dies before the testator, but has any descendants living at the death of the testator, the testamentary gift, if absolute and without remainder or limitation, shall not lapse but shall vest in the descendants of t…

O.C.G.A. § 53-4-65 Disposition of lapsed or void testamentary gift of residuum

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(a) A lapsed or void testamentary gift of realty or personalty shall become part of the residuum. (b) A lapsed or void gift of the residuum shall be deemed a part of the share of the other residuary beneﬁciaries in proportion to their original shares of the residuum. If there are…

O.C.G.A. § 53-4-66 Ademption or destruction of speciﬁc testamentary gift

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Except as provided in Code Section 53-4-67, a speciﬁc testamentary gift is adeemed or destroyed, wholly or in part, when the testator for any reason does not own the subject of such gift at death. History. — Code 1981, § 53-4-66, enacted by Ga. L. 1996, p. 504, § 10.

O.C.G.A. § 53-4-67 Exchange, loss, theft, destruction, or condemnation of testamentary gift

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(a) If the testator exchanges property which is the subject of a speciﬁc testamentary gift for other property of like character, or merely changes the investment of a fund so given, the testator’s intention shall be deemed to be to substitute the one for the other, and the testam…

O.C.G.A. § 53-4-68 Conditions that are impossible, illegal, or against public policy; conditions in terrorem

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(a) Conditions in a will that are impossible, illegal, or against public policy shall be void. (b) A condition in terrorem shall be void unless there is a direction in the will as to the disposition of the property if the condition in terrorem is violated, in which event the dire…

O.C.G.A. § 53-4-69 Election by beneﬁciary with claim adverse to will

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A beneﬁciary taking under a will shall allow all the provisions of the will to be executed as far as the beneﬁciary can. A beneﬁciary who has a claim adverse to the will shall be required to elect whether to claim under the will or against it. However, the mere fact that the bene…

O.C.G.A. § 53-4-70 Election by beneﬁciary owning testamentary gift of property

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(a) When a testator has attempted to make a testamentary gift of property that is not the testator’s own and has also given a beneﬁt to a person to whom the property belongs, the person shall elect to take either under the will or against the will. (b) An election pursuant to sub…

O.C.G.A. § 53-4-71 Compensation to defeated beneﬁciary electing against will

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If, pursuant to Code Sections 53-4-69 and 53-4-70, an election is made against the will, the defeated beneﬁciary shall be entitled to compensation out of the property bequeathed to the person who made the election, up to the value of the defeated testamentary gift. History. — Cod…

O.C.G.A. § 53-4-72 Passing of after-acquired property

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All property owned by the testator at death that was acquired subsequent to the making of a will shall pass under the will if the provisions of the will are sufficiently broad to embrace the property. History. — Code 1981, § 53-4-72, enacted by Ga. L. 1996, p. 504, § 10. COMMENT …

O.C.G.A. § 53-4-73 Disposition of heart pacemakers

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(a) Any individual who is 18 years of age or older and of sound mind may provide for the sale by contract or by will of a heart pacemaker implanted within the individual, such disposition to be made at death. If the sale is by will, it shall be effective without probate. (b) When…

O.C.G.A. § 53-4-74 Pecuniary marital deduction testamentary gift or transfer

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(a) As used in this Code section, the term ‘‘marital deduction testamentary gift or transfer’’ means a testamentary gift or transfer of assets, including cash, which qualiﬁes for the federal estate tax marital deduction. (b) Where a will or trust agreement authorizes or requires …

O.C.G.A. § 53-4-20 Probate of wills

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Common form, §§53-5-17, 53-5-23. Solemn form, §§53-5-21, 53-5-23. Unavailability of witnesses,

O.C.G.A. § 53-4-24 Reeves v

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Webb, 297 Ga. 405, 774 S.E.2d 641 (2015). Former statute unconstitutional. — See McKnight v. Boggs, 253 Ga. 537, 322 S.E.2d 283 (1984) (decided under former Code 1933, § 113-602). Statute prescribes certain essential prerequisites before a valid judgment probating a will in solem…

O.C.G.A. § 53-4-42 Power of testator

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Intent. Express or implied revocation. Subsequent will or other written instrument. Destruction or obliteration of will or material portion thereof. Revival or republication of previous will. Presumption of intent. Effect of implied revocation. Effect of testator’s marriage, or b…

O.C.G.A. § 53-4-50 Revival of previous will, §53-4-45

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Subsequent will revoking previous will, §§53-4-42, 53-4-43. RIGHT OF ENTRY. Intracoastal waterway. Department of transportation. Entry of lands to locate rights of way, §52-3-11. INDEX RUM CREEK PUBLIC FISHING AREA. Boating safety zones, §52-7-13. RIGHT OF PASSAGE ACT. General pr…

O.C.G.A. § 53-4-75 Passing of after-acquired property

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Disposition of heart pacemakers. Pecuniary marital deduction testamentary gift or transfer. Construction of wills and trust instruments referring to federal estate and generation-skipping transfer tax laws [Repealed]. 2537-2545, 2628; Ga. L. 1865-66, p. 85, § 1; Ga. L. 1865-66, p…