Who can offer a will for probate in Georgia?

Probate is the legal process by which a will is proven in court as a valid public document that is the last testament of the decedent. To begin the process of probate, the will must first be “offered” to the court by a party with the power to do so. Under O.C.G.A. § 53-5-2, the executor has the first right to offer the will for probate, but if an executor is not named or if the executor does not offer the will with “reasonable promptness”, any “interested” person may offer the will for probate; but what exactly constitutes an “interested” person?

Although the term “interested” is not defined in Georgia’s Probate Code, the Supreme Court of Georgia first addressed the issue in the case of Finch v. Finch, 14 Ga. 362 (1853), when it determined that a legatee, or a person receiving a legacy under a will, was an “interested” person. Since Finch, Georgia courts have continued to recognize that legatees and devisees, also known as beneficiaries, are “interested” persons and therefore are capable of probating a will.

Other than beneficiaries named in a will, the Georgia courts have not identified other individuals who may qualify as “interested” for these purposes.  However, they have held that a general creditor of a deceased is not an “interested” person, and has no standing to offer a will for probate.  The Supreme Court of Georgia first addressed this issue in Hooks v. Brown, 125 Ga. 122 (1906) and again in Ray v. Stevens, 295 Ga. 895 (2014), each time determining that a general creditor was not an interested person under O.C.G.A. § 53-5-2. In support of its decision, the court reasoned that whether a creditor received payment of his debt from an executor or from an administrator was immaterial. Although a general creditor is not an “interested” person for purposes of offering a will for probate, a creditor can be considered an “interested” person for purposes of caveating or objecting to the probate of a will.

The attorneys at Aitkens & Aitkens, P.C. have vast experience in estate administration and litigation, including offering wills for probate and administration of estates, as well as caveating wills and litigating estate matters.

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