Who Can Offer A Will For Probate?

October 29, 2014

Authored by: Luke Lantta

In Georgia, not everyone may offer a will for probate.  Instead, Section 53-5-2 of Georgia’s Probate Code provides that, if for any reason, the executor fails to offer the will for probate with reasonable promptness, or if no executor is named, any interested person may offer the will for probate.  The categories of “interested persons” could potentially be broad.

Indeed, when it comes to caveats to wills, Georgia’s courts have allowed a long list of people to be considered “interested persons” with standing to caveat a will.  For will caveats, interested persons include heirs, a purchaser from an heir, a judgment creditor of an heir, an administrator appointed for the testator before the discovery of the will, and persons claiming under an earlier will.

Yet, when given an opportunity in Ray v. Stevens to adopt a universal definition of “interested person” for purposes of Georgia’s Probate Code, the Georgia Supreme Court declined (though it did not expressly reject a universal definition either).

Instead, the Georgia Supreme Court recounted that, while legatees and devisees under a will qualify as “interested persons” who may offer a will for probate, a general creditor of the estate does not qualify as an interested person with standing to offer the will for probate.

The failure to provide continuity or uniformity in the definition of an “interested person” under probate law could create issues, especially for those unfamiliar with probate litigation.  Although the Georgia Supreme Court does not explain the reasons for the possible distinction between “interested persons” for purposes of offering a will for probate and for filing a caveat, questions about the genuineness of a will could be one issue.  For example, why would a creditor have an original will?  A legatee or devisee would be much more likely to have an original will to offer for probate.