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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Estate Law
Satisfied Customers: 90505
Experience:  Experienced in Trust and Succession Law, including Louisiana Laws
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what are the statute of limitations on protesting a will in

Resolved Question:

what are the statute of limitations on protesting a will in GA? How does the discovery rule affect this?
Submitted: 5 years ago.
Category: Estate Law
Expert:  Law Educator, Esq. replied 5 years ago.

Under GA Probate Code: "PROCEDURES AVAILABLE FOR DECEDENTS' ESTATES WHEN THERE IS A WILL:
SOLEMN FORM PROBATE - This procedure requires notice to all heirs and becomes binding upon all parties immediately upon entry of the final order. "Heirs" are those persons who would inherit the estate if there were no lawful Will; heirs may or may not be beneficiaries under the Will. The notice requires anyone having a legal cause to object to or contest the alleged Will to file the objection or contest before a certain deadline. The original Will must be filed with the petition, and proof of the proper execution of the will must be provided by either a self-proving affidavit, Interrogatories or Proof of Witness. All heirs must be duly served or must acknowledge service. The Court will appoint a guardian-ad-litem for each minor or incapacitated heir.
COMMON FORM PROBATE - This procedure may be done without notice to heirs but does not become binding for four years after the appointment of the Executor. The requirements of providing the original Will and proof of proper execution are the same as with the Solemn Form Probate. Heirs and others may file an objection or contest at any time up to four years after common form probate." See http://www.georgiacourts.org/courts/probate/grady/estates.html


Under the Solemn Form probate all 'interested persons' are provided a copy of the will before we open the probate, and are either given notice that there will be hearing on the will or they waive notice and sign a consent form to proceed. If you received notice or everyone who had a right to receive notice waived notice, then there is no appeal allowed at all. Under this procedure, your only grounds for contesting would be that you were entitled to notice but were not given notice, but only if the party giving notice knew of your existence, knew where to locate you, and intentionally did not give you notice to cut you out of that process. Furthermore, if you did not object in a timely manner upon learning of the probate, you could be deemed to have consented and waived right to appeal by your inaction.

The Common Form Probate process does not have notice to heirs and if this was the case then the statute of limitations would be 4 years from the date the probate was closed. Your argument here to circumvent the 4 years would be you had know way of knowing and you have filed immediately upon learning of the problem.


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Law Educator, Esq., Attorney
Category: Estate Law
Satisfied Customers: 90505
Experience: Experienced in Trust and Succession Law, including Louisiana Laws
Law Educator, Esq. and 6 other Estate Law Specialists are ready to help you

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