08 LC 29
3165
Senate
Bill 508
By:
Senators Meyer von Bremen of the 12th, Harp of the 29th, Adelman of the 42nd and
Weber of the 40th
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Article 2 of Chapter 6 of Title 10, Chapter 9 of Title 15, Title 29, and
Title 53 of the Official Code of Georgia Annotated, relating to the relations
between principal and agent, probate courts, guardian and ward, and wills,
trusts, and administration of estates, respectively, so as to update and change
provisions affecting the probate courts; to update a reference to a conservator
involving incompetency or incapacity of a principal on a power of attorney; to
change references relating to the power to cite absconding fiduciaries; to
change provisions relating to place and time for holding court; to provide for
quarterly terms of court rather than monthly; to change provisions relating to
the composition of the Probate Judges Training Council, the terms of
councilmembers, and vacancies; to provide for definitions; to provide for
additional concurrent jurisdiction with superior courts; to change certain
provisions relating to compromise of a claim involving a gross settlement; to
change provisions relating to sealing of records; to provide for recordation of
certain information relating to real property when no administration is
necessary; to eliminate year´s support as a bar for probate of a will after
five years; to provide for related matters; to repeal conflicting laws; and for
other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Article
2 of Chapter 6 of Title 10 of the Official Code of Georgia Annotated, relating
to the relations between principal and agent, is amended by revising Code
Section 10-6-36, relating to revocation of agency and the effect of incompetency
or incapacity of principal on a power of attorney, as follows:
"10-6-36.
A
written power of attorney, unless expressly providing otherwise, shall not be
terminated by the incompetency or incapacity of the principal. The power to act
as an attorney in fact for a principal who subsequently becomes incompetent or
incapacitated shall remain in force until such time as a
guardian of
the property
conservator
or receiver shall be appointed for the principal or until some other judicial
proceeding shall terminate the power."
SECTION
2.
Chapter
9 of Title 15 of the Official Code of Georgia Annotated, relating to probate
courts, is amended by revising Code Section 15-9-35, relating to the power to
cite absconding fiduciaries, as follows:
"15-9-35.
(a)
Where any guardian,
administrator,
executor
conservator,
personal representative, surety on their
bonds, or other person removes himself
or
herself beyond the limits of this state or
absconds or conceals himself
or
herself, the judge of the probate court
shall have the power to cite such guardian,
administrator,
executor
conservator,
personal representative, surety, or other
person to appear before
him
the
judge relative to the performance of his
or
her duties or any other matter related to
the probate court pertaining to such person. Service may be had upon the
guardian,
administrator,
executor
conservator,
personal representative, surety, or other
person by publication in the manner prescribed in subsection (b) of this Code
section.
(b)
The judge of the probate court shall cause to be published
his
the
judge´s order calling upon a person
described in subsection (a) of this Code section to appear, in the newspaper of
his
the
county in which sheriff´s advertisements are published, once a week for
four weeks immediately preceding the court day on which the person is cited to
appear. The published order shall be directed to the guardian,
administrator,
executor
conservator,
personal representative, surety, or other
person, shall set the date and time on which the matter in question will be
heard, shall indicate all matters to be passed upon at such time, and shall be
signed by the judge of the probate court in
his
the
judge´s official capacity. Where the
address of the guardian,
administrator,
executor
conservator,
personal representative, surety, or other
person is known, a copy of the published order shall be mailed to the party
named in the order. The judge of the probate court shall make an entry of his
or
her actions upon the minutes of the
court."
SECTION
3.
Said
chapter is further amended by revising Code Section 15-9-82, relating to place
and time for holding court, as follows:
"15-9-82.
The
probate court shall be held at the place prescribed for the superior court or in
the office of the judge of the probate court in each county, by the judge
thereof, on the first Monday in
each
month
January,
April, July, and October and shall
continue in session from day to day as the business of the court may require. If
the first Monday in a given
month
term
should happen to fall on a legal holiday, the probate courts throughout this
state shall convene on the following day."
SECTION
4.
Said
chapter is further amended by revising Code Section 15-9-102, relating to the
composition of the Probate Judges Training Council, terms of office, and
vacancies, as follows:
"15-9-102.
(a)
As used in
this Code section, the term:
(1)
'District' means an area of this state containing one or more counties which is
designated and numbered as a district by The Council of Probate Court Judges of
Georgia.
(2)
'Training council' means the Probate Judges Training
Council.
The
training council shall be composed as follows: three members from the state at
large elected by the probate judges at the annual spring business meeting of The
Council of Probate Court Judges of Georgia for three-year staggered terms and
one member from each judicial administrative district who shall be a judge of
the probate court and elected by the judges of the probate courts within the
district immediately prior to the annual spring business meeting of The Council
of Probate Court Judges of Georgia for a four-year term; provided, however, that
the initial members elected from judicial administrative districts 1, 2, and 3
shall serve for two-year terms and the initial members elected from judicial
administrative districts 4, 5, and 6 shall serve for three-year terms; provided,
further, that, beginning in the spring of 1989, in order to stagger the terms,
the initial term of one state-at-large member shall be one year, one shall be
two years, and one shall be three years.
(b)
The training council shall consist of one member from each district as elected
by the judges of the probate courts within such district. Such elections shall
occur prior to the annual spring business meeting of The Council of Probate
Court Judges of Georgia. Training council members shall serve four-year terms;
provided, however, that members from odd-numbered districts shall serve an
initial term of two years and members from even-numbered districts shall serve
an initial term of four years. All
members may succeed themselves
except for
the three state-at-large members.
Successors,
and successors shall be elected in the
same manner as the original members immediately prior to the expiration of each
member´s term of office. The president of The Council of Probate Court
Judges of Georgia
if not a
district or at-large member of the training
council shall be a voting member of the
training council ex officio.
(b)(c)
In the event a vacancy occurs in the membership of the training council as a
result of a death, resignation, removal, or failure of reelection as a probate
judge, the
remaining
members of the
training
council
district in
which such vacancy has occurred shall
elect a qualified person
from the
district to serve for the remainder of the
unexpired term of the member whose seat is vacant. The person elected to fill
such vacancy shall take office immediately upon election."
SECTION
5.
Said
chapter is further amended by revising Code Section 15-9-127, relating to
additional concurrent jurisdiction with superior courts, as
follows:
"15-9-127.
Probate
courts subject to this article shall have concurrent jurisdiction with superior
courts with regard to the proceedings for:
(1)
Declaratory judgments involving fiduciaries pursuant to Code Sections 9-4-4,
9-4-5, and 9-4-6;
(2)
Tax motivated estate planning dispositions of wards´ property pursuant to
Code Sections 29-3-36 and 29-5-36;
(3)
Approval of settlement agreements pursuant to Code Section 53-3-22 of the
'Pre-1998 Probate Code,' if applicable, or Code Section 53-5-25 of the 'Revised
Probate Code of 1998';
(4)
Appointment of new trustee to replace trustee pursuant to Code Section
53-12-170;
(5)
Acceptance of the resignation of a trustee upon written request of the
beneficiaries pursuant to Code Section 53-12-175;
(6)
Acceptance of resignation of a trustee upon petition of the trustee pursuant to
Code Section 53-12-175;
(7)
Motions seeking an order for disinterment and deoxyribonucleic acid (DNA)
testing as provided in Code Section 53-2-27;
and
(8)
Conversion to a unitrust and related matters pursuant to Code Section
53-12-221;
and
(9)
Adjudication of petitions for direction or construction of a will pursuant to
Code Section 23-2-92."
SECTION
6.
Title
29 of the Official Code of Georgia Annotated, relating to guardian and ward, is
amended by revising subsection (h) of Code Section 29-3-3, relating to defining
gross settlement, compromise of a claim, and finality of settlement, as
follows:
"(h)
If an order of approval is obtained from the
court, or a
court in which the action is pending,
based upon the best interest of the minor, the natural guardian or conservator
is
shall
be authorized to compromise any contested
or doubtful claim in favor of the minor without receiving consideration for such
compromise as a lump sum. Without limiting the foregoing, the compromise may be
in exchange for an arrangement that defers receipt of
part, not to
exceed a total distribution of $15,000.00 prior to a minor reaching the age of
majority, or all of the consideration for
the compromise until after the minor reaches the age of majority and may involve
a structured settlement or creation of a trust on terms which the court
approves."
SECTION
7.
Said
title is further amended by revising Code Section 29-9-18, relating to sealing
of records on conservatorships and guardianships, as follows:
"29-9-18.
(a)
All of the records relating to any
minor or
adult guardianship or conservatorship that
is granted under this title shall be kept sealed, except for a record of the
names and addresses of the
minor,
ward,
and guardian or conservator and their legal counsel of record and the date of
filing, granting, and terminating the guardianship or conservatorship. The
sealed records may be examined by the ward and the ward´s legal counsel
and
by, the minor,
the minor´s parents, and the minor´s legal
counsel, the guardian
or
conservator and the guardian or
conservator´s legal
counsel, and
any surety for the conservator and legal counsel for the
surety at any time.
(b)
A request by other interested parties to examine the sealed records shall be by
petition to the court and the ward and guardian or conservator shall have at
least 30 days´ prior written notice of a hearing on the
petition;
provided, however, that for good cause shown to the court, the court may shorten
such notice period or grant the petition without
notice. The matter shall come before the
court in chambers. The order allowing access shall be granted upon a finding
that the public interest in granting access to the sealed records clearly
outweighs the harm otherwise resulting to the privacy of the person in
interest, and
the court shall limit the portion of the file to which access is granted to that
which is required to meet the legitimate needs of the
petitioner."
SECTION
8.
Title
53 of the Official Code of Georgia Annotated, relating to wills, trusts, and
estates, is amended by revising Code Section 53-2-40, relating to the petition
when an individual dies intestate and no administration is necessary, as
follows:
"53-2-40.
(a)
When an individual has died intestate and there has been no personal
representative appointed in this state, any heir of the decedent may file a
petition praying for an order that no administration is necessary. The petition
shall be filed in the probate court of the county of the domicile of the
decedent, if the decedent was domiciled in this state, or in the county in which
real property is located, if the decedent was not domiciled in this
state.
(b)
The petition shall show: the name and domicile of the decedent; the names, ages
or majority status, and domicile of the heirs of the decedent; a description of
the property in this state owned by the decedent; that the estate owes no debts
or that there are known debts and all creditors have consented or will be served
as provided in Chapter 11 of this title; and that the heirs have agreed upon a
division of the estate among themselves. The agreement containing original
signatures of all the heirs, attested to by a clerk of the probate court or a
notary public, shall be attached to the petition. Property subject to an
outstanding security deed or agreement may be subject to this proceeding only if
the holder of the security deed consents or is served and makes no
objection.
(c)
The personal representative of a deceased heir is authorized to agree to the
division on behalf of that heir.
(d)
In any case involving the approval of a petition for an order that no
administration is necessary, where there is an interest in real property, the
court shall file, within 30 days of granting such petition, a certificate in
each county in this state in which the deceased owned property, to be recorded
in the deed records of the county and indexed under the name of the deceased in
the grantor index. The certificate shall be accompanied by the same fee for
filing deeds with the clerk of the superior court. The filing fee and any fee
for the certificate shall be taxed as costs to the estate. The certificate
shall set forth:
(1)
The date of the order granting the petition;
(2)
The name and address of the deceased; and
(3)
The name and address of all parties that take title to the real property
pursuant to the order issued by the
court."
SECTION
9.
Said
title is further amended by revising Code Section 53-5-3, relating to time
limitation, as follows:
"53-5-3.
A
will shall not be offered for probate following the expiration of five years
from the latest date on which a petition is filed for:
(1)
The appointment of a personal representative of the decedent´s
estate;
(2)
An order
granting year´s support from the decedent´s
estate; or
(3)
An order that no administration is necessary on the decedent´s
estate;
provided,
however, that the will of a testator who died prior to January 1, 1998, may be
offered for probate at least until December 31, 2002."
SECTION
10.
All
laws and parts of laws in conflict with this Act are repealed.