Heir Property in Georgia

Attorney Training Manual

© 2010 Georgia Appleseed, Inc.

All rights are reserved, except as follows: Free copies of this manual may be made for personal use.
Reproduction of more than five (5) copies for personal use and reproduction for
commercial use are prohibited without the written permission of the copyright owner.
The work may be accessed for reproduction pursuant to these restrictions at www.gaappleseed.org.
 Disclaimer
The Young Professionals Council, Georgia Appleseed, and the author(s)
(the “Committee”) present the information in this Heir Property in Georgia
Attorney Training Manual (the “Manual”) as a public service to pro bono
attorneys who represent clients with heir property. The Committee makes
no warranties, express or implied, concerning the information contained
in this Manual or other resources to which it cites. Forms included in the
Manual are intended for illustration purposes only; users of the manual
must seek current forms from the appropriate court or agency.

This Manual is not intended to provide legal advice. Non-lawyers

should consult a licensed attorney in all legal matters. This Manu-
al does not create a lawyer-client relationship between the Commit-
tee, and you and/or your client. The Committee, its employees, agents,
or others that provide information on or through this manual will not
be liable or responsible to you or your client for any claim, loss, injury,
liability, or damages related to your use of this Manual.
 TABLE OF CONTENTS

INTRODUCTION

ACKNOWLEDGMENTS

CHAPTER 1 EFFECTIVE CLIENT REPRESENTATION

Section 1 Who is Your Client?
Section 2 What is Your Client’s Goal?
Section 3 Examples of Ethical Situations
Exhibit 1: Heir Property Intake Form
Exhibit 2: Risk Disclosure Letter

CHAPTER 2 TITLE INSURANCE

Section 1 Ascertaining the Status of Title
Section 2 Potential Title Issues and Resolutions
Section 3 Sources for Further Assistance

CHAPTER 3 CLEARING TITLE

Section 1 Determine How the Property is Titled
Section 2 Obtain the Client’s Family Tree
Section 3 Retrace the Chain of Title, if Necessary
Section 4 What if it’s Not that Simple?
Exhibit 1: Map of Georgia Counties
Exhibit 2: Land Record Information for Georgia Counties

CHAPTER 4 INTESTACY
Section 1 Intestate Heirs
Section 2 Probate Administration
Section 3 Administration of Decedent’s Property
Exhibit 1: Heirs Determination Worksheet
Exhibit 2: Probate / Administration Processes

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 TABLE OF CONTENTS

CHAPTER 5 QUIET TITLE

Section 1 Considerations when there are Competing Interests in the Property
Exhibit 1: Quitclaim Deed
Exhibit 2: Petition to Quiet Title

CHAPTER 6 ADVERSE POSSESSION AND OUSTER IN GEORGIA

Section 1 Adverse Possession
Section 2 Ouster
Section 3 Abandonment

CHAPTER 7 PARTITION
Section 1 Statutory Partitions
Section 2 Equitable Partitions
Exhibit 1: Sample Notice of Application
Exhibit 2: Sample Complaint for Partition In Kind
Exhibit 3: Sample Notice of Writ

CHAPTER 8 GEORGIA TAX SALES: SALES OF REAL PROPERTY FOR UNPAID

AD VALOREM PROPERTY TAXES
Section 1 Payment of Property Taxes
Section 2 Tax Sales

CHAPTER 9 POWERS OF ATTORNEY

Section 1 Conditional Power of Attorney
Section 2 Financial Power of Attorney
Section 3 Sample Forms
Section 4 Revocation or Termination
Exhibit 1: Statutory Form of Financial Power of Attorney
Exhibit 2: Acceptance of Appointment
Exhibit 3: Form of Power of Attorney

Georgia Appleseed ■ Heir Property in Georgia Attorney Training Manual

 INTRODUCTION
“An end to poverty begins with property rights,” observed Sharon Hill, Georgia
Appleseed Executive Director. “This phrase came to our attention when reading about the
eradication of global poverty, but it seemed to describe perfectly our motivation in bringing the
Heir Property Project to Georgia.”

Georgia Appleseed, founded in 2005, is a non-partisan not-for-profit dedicated to law that

serves the public interest. Its Young Professionals Council (YPC) encourages younger lawyers
and other professionals to engage in pro bono activity that will help level the playing field for
Georgians who often do not have a voice to effect systemic change.

In 2008, the YPC adopted heir property as its signature project, and Georgia Appleseed was
awarded a two-year University of Georgia School of Law Cousins Public Interest Fellowship to
explore heir property concerns in Georgia. Real estate attorney Crystal Chastain Baker was
named to the Cousins Fellowship.

The mission of the YPC Heir Property Project is threefold:

a. To provide low income landowners of heir property with the necessary tools to protect
and preserve their property;

b. To engage service providers in Georgia to offer pro bono services to address and remedy
problems associated with heir property; and

c. To find sustainable solutions by increasing awareness of heir property and creating

systemic level responses that may include future legislative relief.

What is Heir Property?

The problem of heir property came into public view in the aftermath of Hurricane
Katrina. 20,000 Louisiana families residing in homes for generations discovered they were
ineligible for federal disaster relief because they could not provide clear title to their property.
Katrina brought to light a problem that abounds in other areas of the country, including Georgia.

“Heir property” is the phrase used to describe real property passed to heirs without
benefit of a will or probate. Georgia laws on descent and distribution related to intestacy can
lead to property ownership being fractionalized among children or siblings, a problem that
compounds over successive generations. The potential hardships of such ownership are many. It
is difficult to rehabilitate, maintain, develop or sell such land. Absence of title undermines the
ability to maximize the property as an asset to economic gain and security, such as collateral to
obtain loans or use of the lands’ timber, mineral or agricultural resources. Property tax payment
lapses and partition sales are other common issues. In Georgia, where many heir property
owners are lower-income, rural African-Americans, loss of heir property often has social,
cultural and economic impact on the surrounding community.

Georgia Appleseed ■ Heir Property in Georgia Attorney Training Manual

Making a Difference for Heir Property Clients
Several concurrent avenues are underway to address and remedy the issues that confront
heir property owners in Georgia. The YPC’s extensive tax database research has confirmed that
the problem of heir property in Georgia is both prevalent and complex. Through the pro bono
assistance of attorneys and other professionals working with such property owners, their needs
may be addressed and remedies sought. In addition, long-term, systemic solutions are under
exploration.

This Heir Property in Georgia Attorney Training Manual has been created to guide non-
real estate attorneys through an understanding of the laws of intestacy and risks associated with
heir property. It provides tools to navigate pro bono attorneys through the process of perfecting
title and includes an important section on professionalism and ethics that covers issues that heir
property may generate. A series of scenarios featuring fictitious heir property owners illustrate
key points, as well.

This manual is presented as a public service to pro bono attorneys and is intended for
educational purposes only. It is presented in loose-leaf format to accommodate future updates
and addenda. The forms included are for illustrative purposes only; users of the manual must
seek current forms from the appropriate court or agency, where applicable.

A supplemental tool available for heir property clients and attorneys is the user friendly,
information manual, Heir Property in Georgia, that covers such topics as property basics, steps
to protect one’s land, and the importance of a will. It is online at www.GaAppleseed.org/heir.

Future goals of the YPC address long-term aspects of the Heir Property project, including
creating a sustainable, stand-alone 501 (c) 3 legal clinic that serves the needs of low-income
owners of heir property and reforming Georgia’s partition law. Bridging the gap until that time,
however, are attorney volunteers generously providing professional services pro bono to help
disadvantaged heir property owners to protect their property interests and to enhance their
economic security. We extend our sincerest appreciation to our Heir Property Project volunteer
practitioners and to the many legal volunteers who have helped to bring this Manual to fruition.

Avril McKean Dieser Crystal Chastain Baker

Georgia Appleseed UGA School of Law
Young Professionals Council Cousins Public Interest Fellowship
Heir Property Project Chair Georgia Appleseed
Heir Property Project Manager

Georgia Appleseed ■ Heir Property in Georgia Attorney Training Manual

 Acknowledgments
The Heir Property in Georgia Attorney Training Manual was produced under the
auspices of the Young Professionals Council (YPC) of the Georgia Appleseed Center for Law
and Justice, in conjunction with the University of Georgia School of Law, Cousins Public Interest
Fellowship on Heir Property.

We would like to thank the following individuals and organizations for their participation
and support of this project.

Georgia Appleseed Heir Property Project Staff

• Crystal Chastain Baker, Esq.
UGA School of Law Cousins Public Interest Fellow
Georgia Appleseed Heir Property Project Manager
• Puja Vadodaria, Esq.
Georgia Appleseed DLA Piper Fellow

Georgia Appleseed Young Professionals Council (YPC)

• Jessica McKinney, Esq., YPC President
• Jason Carter, Esq., Immediate Past YPC President
• Avril McKean Dieser, Esq., YPC Heir Property Chair
• Sharon Hill, Esq., Georgia Appleseed, Executive Director

Collaborative Partners
• UGA School of Law Public Interest Practicum
• Georgia Appleseed Center for Law and Justice
• Alabama Appleseed

Financial Supporter
Cousins Public Interest Fellowship

Pro Bono Volunteers

DLA Piper LLP (US)
• James “JB” Allen • Ben Keiser • Cara J. Nelson
• Gillian M. Deutch • Jeremy Adam Kruger • Roberta (Bert) A. Ritvo
• Mariah F. DiGrino • Shawn Lanier • Lawrence E. Uchill
• Thomas M. Grace • Jarrod Matteson • Sarah Whitmarsh
• Brian M. Gordon • Shunta Vincent McBride
Frank S. Alexander, Professor of Law, Emory University School of Law
Scott Bryant, Holt Ney Zatcoff & Wasserman LLP
Courtney Showell, Sr., Director of Advisor Services, PricewaterhouseCoopers, LLP
Lauren Zeldin, Taylor English Duma LLP

Cover Photograph
Janice F. Dyer, Auburn University, Department of Agricultural Economics and
Rural Sociology

Georgia Appleseed ■ Heir Property in Georgia Attorney Training Manual

 CHAPTER 1 EFFECTIVE CLIENT REPRESENTATION

A lawyer is a representative of clients, an officer of the legal system, and a citizen having
special responsibility for the quality of justice. As a representative of clients, a lawyer serves as
an advisor, advocate, negotiator, intermediary, and evaluator. As an advisor, a lawyer provides a
client with an informed understanding of the client's legal rights and obligations and explains
their practical implications. As an advocate, a lawyer zealously asserts the client's position under
the rules of the adversary system. As a negotiator, a lawyer seeks to produce advantageous
results for the client while staying consistent with the requirements of honest dealing with others.
As an intermediary between clients, a lawyer seeks to reconcile their divergent interests as an
advisor and, to a limited extent, as a spokesperson for each client. As an evaluator, a lawyer
examines a client's legal affairs and reports about them to the client or to others. As a citizen, a
lawyer should seek improvement of the law, the administration of justice and the quality of
service rendered by the legal profession. As a member of a learned profession, a lawyer should
cultivate knowledge of the law beyond its use for clients, and employ that knowledge to reform
the law and to strengthen legal education. A lawyer should be mindful of deficiencies in the
administration of justice and of the fact that some people cannot afford adequate legal assistance
and should, therefore, devote professional time and civic influence in their behalf. A lawyer
should aid the legal profession in pursuing these objectives and should help the bar regulate itself
in the public interest.

Section 1 Who is Your Client?

In the context of heir property it is often difficult to identify the actual client. Is it the
person living on the land, the brother in Chicago with no emotional interest in the property, or is
it the sister who has been paying the taxes on the land? Now multiply this example by the
number of heirs to the property. While Georgia Appleseed would like to focus on the client
living on the land because preserving the home place is of primary importance to this project,
this may not always be the case. Resolving the question of who is the client is a very important
ethical obligation before service can begin.

1.1 Serving as an Intermediary

Although you are trying to work out a solution for all landowners, you can only represent
one side/one client. If you are in a situation where you are representing more than one
individual, your role might transform into that of an intermediary rather than an advocate.
Accordingly, in the Georgia Rules of Professional Conduct (“Rule”), the comments to Rule 2.2
state: “A lawyer acts as intermediary under this Rule when the lawyer represents two or more
parties with potentially conflicting interests.” 1 Because confusion can arise as to the lawyer's
role when each party is not separately represented, as their lawyer you must make this
relationship clear and in writing.

1
GEORGIA RULES OF PROFESSIONAL CONDUCT Rule (2009).

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 A lawyer acts as intermediary in seeking to establish or adjust a relationship between
clients on an amicable and mutually advantageous basis; for example, arranging a property
distribution in the settlement of an estate or mediating a dispute between clients. In these
circumstances, the lawyer seeks to resolve potentially conflicting interests by developing and
concentrating on the parties' mutual interests. The alternative can be that each party may have to
obtain separate representation, with the possibility, in some situations, of incurring additional
cost, complication or even litigation. Given these and other relevant factors, all the clients may
prefer that the lawyer act as intermediary.

In considering whether to act as an intermediary between clients, a lawyer should be

mindful that if the intermediation fails, the result could be additional cost, embarrassment and
recrimination. When the risk of failure is so great and intermediation is plainly impossible, a
lawyer should decline to take that role. For example, a lawyer cannot undertake common
representation of clients between whom contentious litigation is imminent or who contemplate
contentious negotiations. More generally, if the relationship between the parties has already
assumed definite antagonism, the possibility that the clients' interests can be adjusted by
intermediation ordinarily is not very good.

The lawyer must reasonably believe that the matter can be resolved on terms compatible
with the clients' best interests and that each client can make adequately informed decisions in the
matter. Furthermore, the lawyer should find that little risk exists of materially prejudicing the
interests of the clients if the contemplated resolution is unsuccessful and that the lawyer can
undertake common representation impartially and without improper effect on the lawyer’s other
responsibilities to any of the clients.

In acting as intermediary between clients, the lawyer is required to consult with the
clients on the implications of doing so, and proceed only after obtaining consent based on such a
consultation. The consultation should make clear that the lawyer's role is not that of partisanship,
which is normally expected in other circumstances. This consultation should be detailed, in
writing and signed by all parties.

1.2 Dealing with Unrepresented Parties

Another situation in heir property cases likely will involve dealing with unrepresented
family members. Rule 4.3 states in relevant part: “In dealing on behalf of a client with a person
who is not represented by counsel, a lawyer shall not: (a) state or imply that the lawyer is
disinterested; when the lawyer knows or reasonably should know that the unrepresented person
misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to
correct the misunderstanding; (b) give advice other than the advice to secure counsel.” If you
encounter a family member who is unrepresented and you determine that the situation is not one
where you can serve as an intermediary, your duty is to advise this individual to secure counsel.
You are not to provide any further advice. It is to your benefit to have a signed form stating that
you do not represent this individual.

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Chapter 1 Page 2
Section 2 What is Your Client’s Goal?
Once you have established who the client is for the heir property matter, the next
important step is to ensure that the client fully understands what you have agreed to do for him.
Thus, you must provide, in writing, an agreement between your client and you that sets forth
your duties and obligations to the client.

2.1 Explaining Possible Consequences

Your responsibility to the client also includes explaining all of the possible outcomes
associated with clearing title, including its effect in the client’s legal ability to remain on the
property, which is of utmost importance in the heir property context. Rule 1.4 states: “A lawyer
shall explain a matter to the extent reasonably necessary to permit the client to make informed
decisions regarding the representation, shall keep the client reasonably informed about the status
of matters and shall promptly comply with reasonable requests for information.” Almost always
clearing title will have the effect of making the client more vulnerable to competing interests in
the property. Because of this fact, it is your duty to make sure the client is fully educated in
realizing the benefits and consequences of clear title so that the client can make an informed
decision after your representation with regards to the property. Rule 2.1 states: “In representing
a client, a lawyer shall exercise independent professional judgment and render candid advice.”

2.2 Providing Honest Advice

A client is entitled to straightforward advice expressing the lawyer's honest assessment,

therefore, a lawyer should not be deterred from giving candid advice by the prospect that the
advice will be unpalatable to the client. Legal advice often involves unpleasant facts and
alternatives that a client may be disinclined to confront. In presenting advice, a lawyer endeavors
to sustain the client's morale and may put advice in as acceptable a form as honesty permits. In
rendering advice, a lawyer may refer not only to law, but also to other considerations such as
moral, economic, social and political factors that may be relevant to the client's situation.
Remember that the different and competing interests can create a sensitive ethical situation. For
example, a common situation that will occur is when a client has been maintaining the property
and paying taxes. This client may think that his efforts equate to a greater ownership interest
than he has at law; however, even though this may be unpleasant information, you must explain
to the client that his efforts do not change his actual interest in the property based on the law.

Additionally, conflicts will occur when you are faced with families divided on what the
land should be used for in the future. For example, while one part of the family might want to
get immediate profit from the sale of the property, the other part of the family might want to
remain in a home on that property. Part of your duty is to inform your client of all possible
options that become available when title is clear. This will include selling the property, holding
the property in a family corporation, rehabilitating the property, dividing the property among
owners. Your client must be made aware of all possible results and consequences of clearing
title through legal advice and education.

While marketable title is generally the goal, this may not be the best solution based on the
facts of the case. Ultimately, it is the decision of the client to decide whether to pursue this

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objective. Rule 1.2 states: “Both lawyer and client have authority and responsibility in the
objectives and means of representation. The client has ultimate authority to determine the
purposes to be served by legal representation, within the limits imposed by law and the lawyer's
professional obligations.” Thus, the lawyer should assume responsibility for technical and legal
tactical issues, but should defer to the client regarding such questions as the expense and concern
for third persons who might be adversely affected. The objectives or scope of services provided
by a lawyer may be limited by agreement with the client or by the terms under which the
lawyer's services are made available to the client. The terms upon which representation is
undertaken may exclude specific objectives or means. This agreement should be in writing and
in accordance with the rules of professional conduct.

Section 3 Examples of Ethical Situations

3.1 Representing Clients with Conflicting Interests

Joseph Builder and his cousin, Rita Teacher, have inherited a property interest in a one-
acre lot, in the city of Gordon, which their family has owned for generations. The property is
valued at $50,000. Based on intestacy laws, Joseph, who recently lost his job, has a 55% interest
in the land and Rita has a 40% interest in the land. Rita is able to buy out the remaining co-
owners of their 5% interest. When Rita and Joseph come to you, they want to pursue clear title
as a joint effort.

While Georgia Appleseed prefers to focus on preserving the land for the client living on
the land, in this instance you might be asked to represent both parties. In this situation, before
beginning the process for clear title, it is your duty to first determine the goals of each individual.
Joseph’s goal might be to consolidate marketable title in their names so that he can obtain a
mortgage to build a new home and live on the family land. Rita’s goal might be to sell her
interest in the property for a greater profit than a property with clouded title is worth. If the
parties have conflicting interests, then you must inform them clearly that you will act as an
intermediary to mediate the conflicting goals between the clients, and not as an advocate for
either side. Only after both parties provide written consent, should you proceed with the
representation. If they do not consent, you should not represent both parties.

If you proceed to represent just Joseph in this matter, not only must you inform him of
the risks of losing his property, you must also ensure that Rita fully acknowledges that you do
not represent her or her interests in this matter and that to obtain legal advice she should secure
separate legal counsel. Finally, if they do consent to joint representation, one resolution might be
to tell the clients to raise an in-kind partition so that Joseph can build a home and live on his part
of the land and Rita can sell her portion to a willing buyer.

3.2 Providing all the Outcomes Before Pursuing a Case

Betty Farmer, from Darien City Georgia, has lived on the acre of land that has been in her
family since her great-grandfather, John Farmer. The property is valued at $10,000. Based on
Georgia’s intestacy laws, Betty only owns 95% of the interest in the property that she had lived
on for her entire life, paid out property taxes for the past twenty years, and performed all

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required maintenance for the upkeep of the house. She wants to obtain clear title in her name
solely so that she can leave the home to her child in her will.

Many times co-owners that do not live on the land do not have any ties to the property or
the area. These heirs might think they are going to get a lot of money if they force a sale because
they are unaware that with the court costs, lawyer fees, and low property values, they will
actually end up with very little, if anything. However, because they think the land is worth more
than it actually is worth, they do not want to sign over their shares to those who reside on it.

In this situation, it might be advisable to send a letter to all of the identified heirs, with a
request to voluntarily transfer their interest in the land to Betty by executing a quitclaim deed.
By informing the owners of the actual value of the land, the costs to enforce a partition sale, and
the actual value they would receive after reimbursing Betty for tax payments and property
upkeep, they might be willing to hand over their interest. This method is just one of many ways
peaceful negotiations can clear and consolidate title.

However, it is your duty to inform Betty that a small risk of losing her home exists. If a
newly discovered co-owner forces a partition sale, and she does not have the assets to buy them
out, a third party has the opportunity to dispossess her of her home in the partition sale. Thus,
even though the chances of Betty obtaining consolidated clear title in her name are high, you
must make sure she is educated of all of the outcomes before taking action.

3.3 Providing Honest Advice to Clients in Unfavorable Situations

Joey Waiter lives on a 1/3-acre coastal property that he co-owns with his sister, Sidney
Mechanic, and many other heirs. Joey and Sidney each own 35% of the land that is worth
$100,000. Two years ago Joey and Sidney had a disagreement about who inherited their
mother’s china. Since that argument, neither side has been able to communicate amicably.

Although Joey asks you to represent him in obtaining clear title to the property so that he
can continue to live on the land and keep the land in the family, it is your duty to inform him that
obtaining clear and marketable title will not solve his problems. First, although he owns a
significant portion of the land, with clear title he is still vulnerable to losing the land if a minority
interest holder sells their interest to a buyer with “deep pockets.” After the buyer has even a
nominal interest in the land, the buyer can demand a partition sale to obtain rights to the entire
land.

Furthermore, even if Joey was able to obtain clear title and buy out the minority interest
holders’ shares of the land, because of their precarious relationship, his sister, Sidney, probably
will not acquiesce to his demands. While Joey has the ultimate authority whether to pursue clear
title, it is your duty to give the client candid and straightforward advice, even if it calls for
solutions that the client may not want to explore.

The Intake Form (Exhibit 1) is a tool for your use in assisting your new client with heir
property issues. The Risk Disclosure Letter (Exhibit 2) should be provided to your client to
make them aware of the potential risks of seeking clear title.

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Chapter 1 Page 5
 EXHIBIT 1: HEIR PROPERTY INTAKE FORM

Instructions. In order to preserve attorney-client privileged information, an attorney or a

volunteer working under the supervision of an attorney should complete this form. PLEASE DO
NOT GIVE THIS FORM TO THE INDIVIDUAL SEEKING ASSISTANCE TO FILL OUT.

Part I of this form is intended to obtain information necessary to allow local organizations to
determine a potential client’s eligibility. It is also intended to allow pro bono law firms to
perform conflict searches to determine whether they may represent a potential client.

The remainder of this form (Parts II through IV) is intended to guide the person doing the intake
through a narrative process that is designed to arrive at the answers to the numbered questions.
Below each numbered question is a series of leading questions designed to aid the person doing
the intake in leading a conversation with the individual seeking assistance. Do not feel limited to
the suggested questions.

To the greatest extent possible, please take this approach with the individuals with whom you are
working. Please take as many relevant notes possible and keep all notes on separate pages. This
information will be helpful to the attorneys performing the work for this individual.

THE INFORMATION CONTAINED IN THIS FORM IS CONFIDENTIAL AND MAY

BE PROTECTED BY THE ATTORNEY CLIENT PRIVILEGE.

Georgia Appleseed ■ Heir Property in Georgia Attorney Training Manual

 PART I. CLIENT INFORMATION

PLEASE PRINT:
Applicant’s Name: ______________________________________________________________
Soc. Sec.#: ____________________________________________________________________
Address: ___________________________________ County: ___________________________
City: ___________________________________ State: _______________ Zip: ____________
Home Telephone: ___________________________ Work Telephone: ____________________
Cellular Telephone: _________________________ Other Telephone: ____________________
(Relative Not Living with You)
Email Address: _________________________________________________________________
Occupation: _______________________________ Employed By: _______________________
Spouse: ___________________________________ Employed By: _______________________

DATE OF BIRTH: ____ / ____ / ____ AGE: ______ SEX: □ Male □ Female

RACE/NATIONAL ORIGIN: □ Black □ White □ Hispanic □ Native American

□ Asian/Pacific Islander

MARITAL STATUS: □ Single □ Married □ Divorced □ Separated □ Widowed

CITIZEN: □ Yes □ No ELIGIBLE ALIEN: □ Yes □ No MIGRANT: □ Yes □ No

Is this your first time talking with an attorney about this matter? □ Yes □ No
Adverse Party: _________________________________________________________________
Adverse Party’s Address: ________________________________________________________

HOUSEHOLD RESIDENTS:
Name Age Relationship Employer

Georgia Appleseed ■ Heir Property in Georgia Attorney Training Manual

INCOME: □ Weekly □ Monthly □ Bi-monthly □ Annually
Source Applicant Spouse Other
□ Wages $ $ $
□ Social Security $ $ $
□ SSI $ $ $
□ TANF $ $ $
□ Pension $ $ $
□ Unemployment $ $ $
□ Worker’s Compensation $ $ $
□ Child Support □ Alimony $ $ $
□ Other: $ $ $
TOTAL AMOUNT $ __ $ __ $

ASSET:
Source Value Amount Owed Monthly Payment
□ Cash □ Saving/Checking
□ Home/Land
□ Vehicles
□ Other

EXPENSES:
Source Monthly Payment Source Monthly Payment
□ Employment Related □ Child Support
□ Medical / Nursing Expenses □ Alimony
□ Age / Disability Expenses □ Transportation
□ Dependent Care □ Other ___
□ Paying Current Taxes
□ Property Taxes

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 PART II. PROPERTY INFORMATION

GENERAL PROPERTY INFORMATION

1. Please attach a copy of a document stating the legal description of the property.
2. Address of the property.

TAXES
3. Name and contact information of person listed on tax rolls as owner.
• Have you paid the taxes on the property?
• Who has paid the taxes on the property?
• For how long?
• Do you have receipts or other documents related to payment of taxes?
• Please provide a copy of your existing tax bill.
4. Have the property taxes been paid in a timely manner?
• Have you been paying the property taxes regularly?
• Have you received any communications/letters from the county tax collector?
5. Individual’s relationship to person listed on tax rolls as owner?
6. Names of everyone living on or using the property (including a description of each person’s
use and relationship (familial or otherwise) to individual).
• Is anyone else living at the property?
• What is that person’s relationship to you?
• Do they live there, receive mail there?
• Do they work/farm the property?

TITLE / ESTATE ISSUES

7. Whose name is the title to the property now in?
• What is the legal status of the owner(s) (single, married, partnership, corporation, joint
tenants, tenants in common, heirs property)
• How and when was the property acquired?
• Do you know if the original owner ever transferred the property to anyone else?
• Have you seen a deed for the property? If so, whose name is on it as the grantee?
• Who lives on the property?
8. Individual’s relationship to that person?
• What is your relationship to the last “owner” of the property?
9. If the property is part of an estate of a deceased parent or other relative:
a. Was there a will?
b. Was an estate opened and/or adjudicated and closed by the Chancery Court?
• Did the last owner leave a will?
• Was the will officially handled in court?
• Did the court order that the person’s property pass to certain people?
10. Names of all people who have or may have an interest in the property (to the extent known).
A family tree (including information like marriages, divorces, dates of birth/death, contact
information, relationship to record title holder) would be of great use, if it is possible to
collect that information from the individual. Please get as much family tree-type information
as the individual can offer. Please begin with record titleholder and obtain information for

Georgia Appleseed ■ Heir Property in Georgia Attorney Training Manual

 each person in the family tree. Don’t forget to consider deceased heirs, divorces, children
from different marriages, all spouses or children of the deceased, including grandchildren of
any deceased children (these are all of the co-owners if there has been no settlement of the
deceased owner’s estate), etc.
• Can you tell me about [the last owner’s] children?
• Was that person married at the time?
• Was that person ever divorced?
• Did those children have any children?
• Who is still alive?
• How many generations are involved in ownership of the property?
• How many owners are accounted for (i.e., can be located) and how many are
unaccounted for (i.e., can’t be located)?
11. Describe the state of relations among applying co-owner (i.e., the individual) and other co-
owners.
• Are you still in touch with any/all of these relatives?
• Are there any major divisions in the family?
• Do you see any of these co-owners regularly?
• When was the last time you saw ____________?
• Are you and _____________ on good terms?
• Did the scheme of distribution of property in the will cause any bad feelings?
• Does anyone currently claim to want to occupy/use the property?
• Have you talked about these issues with ___________ before?
• Who has paid property expenses over the last __ years (e.g., improvements,
maintenance)?
• Have there been any major improvements made to the property over the last __ years? If
so, who paid for them? How much did they cost?
• Has there been any major maintenance cost incurred with respect to the property over the
last __ years? If so, who paid for them? How much did they cost?
12. Is the property the registered homestead of any individual?
• Does anyone get a tax break on the property because it is their homestead?
• Are there any other tax breaks that benefit the property (i.e., over 65)?
13. Has the property been leased out or otherwise used by non-owners? If so, please describe the
uses, who the landlord was, and who collected payments on these arrangements?
• Does anyone other than relatives use the property?
• Has the property ever been leased out to someone other than relatives?
• Have you ever taken money to allow someone else to use the property?
14. Was the property purchased in the last 10 years? If so, please attach copies of all sale
documents.
• How long has the property been in the family?
• How did it come into the family?

LEGAL PROCESS
15. Was property ever legally divided up, or subjected to any legal process?
16. Do you know whether anyone with legal interest to land has a default on a payment
obligation that could implicate the land?

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DISCUSSIONS AMONG FAMILY MEMBERS
17. To your knowledge, has any family member sold or tried to sell outside family?
18. Has any family member asked other family members to agree to sale or mortgage of all/part
of land?
19. Any disagreements among family as to how to use land or profits/taxes?
20. Any disagreements among family as to who is legitimate heir to land?
21. Do any liens encumber the property (e.g., mortgages, tax liens, construction liens, etc.)?

OUTSIDE OWNERS/USERS OF PROPERTY

22. Has any outsider approached family members about buying, or threatened legal action?
23. Is anyone outside the family using part of the land, and if so, a) is it without permission of
any/all family members, and b) does outsider pay for use of land (and if so, who is collecting
money)?
24. Any boundary disputes?

PROPERTY CHARACTERISTICS
25. What is the property size?
• Less than 10 acres
• 10-49 acres
• 50-00 acres
• 100-999 acres
• Over 1,000 acres
26. Does the property have any special historical, cultural or community significance?
27. Briefly describe your personal connection to this land as well as your family’s connection to
this land.
28. Are there improvements on the property? If so, what are they?
29. Does the property have any special African American cultural significance?
• History of Black ownership or displacement:
• Historic structures:
• Cultural sites:
• Designated historic district:
• Local historic landmark:
30. Is there water on this land? If so, what kind?
31. What type of natural habitat is on the land – plant and/or animal?
32. Does this land have an agricultural use? ____. If so what kind?
• Contains prime or productive agricultural soil
• Has favorable micro-climate, specify
• Buffers productive agricultural land
33. Does this land have a forest? ____ If so what kind?
• Working Forest
• Subsidies/programs
• Technical Assistance
• Management Plan
• Timber Forestry
• Solis Question

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34. Does this land generate income? ____. If so, what type?
• Working Farm
• Working forest
• Supportive Infrastructure in the Community
• Business Plan
• On Farm Infrastructure
• Ag/Forest product processing, marketing or sale
• Subsidies/Program
• Technical Assistance
• Home site/Family
• Tourism
• Timber

35. Is the land used currently or in the future do you plan to use the land for any of the following
recreational activities?
… Walking or hiking … ATV/Motorcycle/Snowmobile riding
… Camping … Large group tours
… Wildlife viewing … Commercial recreation
… Lawful hunting or fishing … Environmental or other education
… Horseback riding … Public access
… Non-motorized biking … Other(s):
Describe:

36. Is the land used currently or in the future do you plan to use the land in any of the following
ways?
… Wetland enhancement or pond creation … Fish or wildlife habitat enhancement
… Topographical grading … Tree or vegetation clearing/planting
… Road/trail building … Landing pad or airstrip construction
… Restoration of streams or buffers … Home or building construction
… Other(s) … Public access
Describe:

Georgia Appleseed ■ Heir Property in Georgia Attorney Training Manual

 PART III. CLIENT’S GOALS

37. What is the client’s immediate goal for the property?

• Have title to the property consolidated into one person’s name
• Obtain MDA grant or other loan
• Obtain insurable/marketable title
• What is the total percentage interest of family members who agree with the client on this
goal?
• Other (please explain)
38. Does the client’s goal benefit the community?
• List the benefits of the idea for the owners and the community?
• What are the primary obstacles to the idea?

39. What are the critical factors necessary for the success of the idea? How does the client plan
to use the property in the future?

… Sell … Recreation (See next)

… Pass on to children … Home business
… Farming … Commercial/Industrial use
… Livestock grazing or boarding … Additional home(s)/structure(s)
… Working forest or timber harvesting … Other(s):

40. What does the client see as the primary value of the property?
… Place to visit … Inheritance for children/grandchildren
… Place to live (full time / part time) … Natural landscape to be preserved
… Financial asset/investment … Other(s)

41. Does the client wish to sell or donate a conservation easement? If so, why is the client
interested in seeing the property conserved?
… Maintain open space … Protect special natural feature or wildlife
… Estate planning … Avoid family conflicts over future use
… Tax credit/deduction (for donation only) … Other(s)

42. Has the client discussed conservation options with any other organizations or agencies? If
so, who?
43. In what ways, if any, does the client plan to remain involved with the land?

CONSERVATION VALUES
44. How has the client witnessed the natural landscape change during their ownership?
45. Wildlife or botanical species sightings (either personal or second-hand):
46. Are there any cultural or historic features on the property?
47. Is the property visible from any public road or trail?
48. Does the client see any obstacles to conservation of the land?

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 PART IV. DOCUMENTS

49. List documents provided by individual.

DOCUMENTS THAT INDIVIDUAL MAY HAVE OR COULD PROVIDE

HAVE NEED DOCUMENT

1. Last deed recorded in the applicable public repository
2. Tax records (e.g., bills, statements, appraisals, receipts, etc.)
3. Hazard insurance policies
4. Title insurance policies
5. Will for record title holder
6. Will for any other person discussed in this intake form
7. Any notices related to the property (e.g., tax sale, foreclosure, demand,
etc.)
8. Any agreements among co-owners related to the property
9. Any third party agreements related to the use of the property
10. Copy of any grant application submitted with respect to the property
11. Copy of any materials submitted in connection with any grant
application submitted with respect to the property
12. Family records (e.g., bible, birth certificates, death certificates, etc.)
13. Death certificates of record title holder and deceased heirs of that
individual

Person doing intake: _____________________________________________________________

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 EXHIBIT 2: RISK DISCLOSURE LETTER

Dear _______:

For the purposes of this Risk Disclosure Letter, ___________ will be referred to as the
“Client,” “You” and/or “Your.” “Client,” “You” and “Your” shall also mean your agents,
employees, attorneys, insurers, sureties, predecessors, successors, assigns, heirs, executors and
administrators, and each of them.

Based upon the information You provided to us in Your application, we are of the
opinion that You should carefully consider the following information before You decide to
continue to seek clear title to the heir property located at ______________, belonging to the
recorded title owner ________________(“Property”).

PLEASE BE AWARE OF THE FOLLOWING:

1. If we cannot identify and locate all of the heirs at law of the Property, we may not be able
to obtain clear title to the Property in Your name;

2. A risk exists that even if all the heirs are located and clear title is obtained it may not rest
solely in Your name. If we cannot obtain the other heirs’ cooperation and voluntary
agreement to transfer to You all of their legal title and interest in the Property, we will
not be able to consolidate and clear title in Your name only;

3. If clear title to the Property does not exist in Your name only, You face a significant risk
of losing the Property. After the Property’s title is cleared, the chances of partition (a
division of the Property) may increase. Prior to beginning the process to clear title to the
Property, some of the co-owners to the Property might not be aware of their ownership
rights. However, because each co-owner has the right to sue for partition, if additional
co-owners are discovered during this process, there is a greater chance that a co-owner
may bring a partition action. Although, generally speaking, the court prefers an in-kind
partition (dividing the land amongst the co-owners), many times the property in question
cannot practicably be divided into equal parcels, and thus, the whole property is sold and
the profit received from the sale is divided amongst the co-owners proportionate to their
interest in the land. Therefore, You, as the person living on the Property, may risk losing
Your home if another co-owner demands a partition sale of the entire Property; and

4. A court-ordered partition sale typically draws less than optimal or fair market value
because of the forced timed conditions of the court sale where there are willing buyers,
but “court-ordered” sellers. In these instances, heir property owners not only lose their
land, and often the family homestead, but they also tend to fail to capture the full
economic value of the land once the sale is ordered.

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 In light of the foregoing, You should seriously consider whether Your decision to obtain
clear title to the Property is appropriate in light of Your particular circumstances. Accordingly,
You should only pursue obtaining clear title if You are willing and able to accept the risk losing
the Property to a co-owner, a non-family individual and/or losing the family homestead if it
exists on the Property. No one can guarantee that these risks can be eliminated.

WITH YOUR SIGNATURE BELOW, YOU ACKNOWLEDGE AND AGREE THAT:

1. YOU ARE FULLY AWARE OF THE SUBSTANTIAL RISK OF

PROPERTY LOSS IN SEEKING TO OBTAIN CLEAR TITLE;

2. YOU ACCEPT FULL RESPONSIBILITY FOR YOUR DECISION TO

OBTAIN CLEAR TITLE TO THE PROPERTY;

3. WE DO NOT AND WILL NOT ASSUME ANY RESPONSIBILITY

TO YOU FOR THE LOSS OF THE PROPERTY OR CHANGES IN
YOUR NET WORTH;

4. YOU WILL DEFEND, INDEMNIFY AND HOLD US HARMLESS

FOR ANY CLAIMS MADE AGAINST US FOR YOUR LOSS OF THE
PROPERTY OR CHANGES IN YOUR NET WORTH; AND

5. WE MAY, IN OUR SOLE DISCRETION REFUSE TO ACCEPT

YOUR APPLICATION OR DIRECTION TO PROCEED, IF YOUR
DECISION TO OBTAIN CLEAR TITLE IS NOT MADE WITH FULL
APPRECIATION OF THE RISK OF LOSS.

Again, while we cannot guarantee the result or outcome of this matter, we will strive to
provide You with the highest quality legal representation and endeavor to exercise our best
judgment at all time. We look forward to working with you in this endeavor.

Regards,

______________________________
Name:
Title:

[Signature Page Located on the Following Page]

Georgia Appleseed ■ Heir Property in Georgia Attorney Training Manual

ACKNOWLEDGED BY: ACKNOWLEDGED BY:

(Signature) (Signature)

(Print Name) (Print Name)

(Date) (Date)

Georgia Appleseed ■ Heir Property in Georgia Attorney Training Manual

 CHAPTER 2 TITLE INSURANCE

Owning land, and more particularly owning a home, is often the most important asset that
individuals will have in their lifetime. Frequently, in order to take advantage of such ownership,
it is vital to establish that the homeowner has "good title" to his or her property. Establishing
good or insurable title enables an individual to do many things, including: (i) obtaining
financing, (ii) establishing proof of residency for purposes of obtaining a drivers license or a
passport, (iii) obtaining reconstruction aid from certain governmental programs, (iv) settling title
disputes, (v) leasing the property and (vi) being able to sell the property to a third party. In
addition, since many people reside in their home throughout their lifetime, when they die they
want to be able to leave this asset to their children or other heirs. To settle their estate, their heirs
will need to establish that good title to the property was vested in the decedent.

So the question is, how can you help your client establish good title to real property?
Usually this process begins by looking at the source of such title. In most cases, a homeowner
obtained title to real property by having title transferred to them through a deed. Usually, if this
is the case, the deed should have been filed in a local county deed records, and as long as the
filed deed was properly completed, included a proper property description, and the deed, as filed,
is still readable, good title will be established through a search of the deed records and locating
the deed. Similarly, if someone who owned property dies, and the probate court makes a
determination that the deceased owned the property, the court will make a filing in the deed
records that will establish good title in the heirs of the deceased. Courts may also make a
determination of title in connection with filing orders related to settling title disputes or
bankruptcy. However, even when title is established of record, it is possible for the validity of
such title to be voided in Georgia, for example, if a third party has taken open, continuous and
peaceable possession of the property for at least twenty years (and in some cases, if color of title
is applicable, as little as seven years), the third party may be deemed to have taken title to such
property, by virtue of its adverse possession of the property. (Adverse possession will be
discussed later in this Manual.)

This chapter will address the following:

i. Steps to ascertain the status of title for real property;

ii. Potential title issues, and the approach to resolving each; and
iii. Sources for further assistance.

Section 1 Ascertaining the Status of Title

Given the importance of obtaining good title as described above, this chapter will turn to
what steps you can take to ascertain the current status of the title of your client’s property. These
steps include conducting a client interview, reviewing the title abstract, reviewing any plats of
record and/or surveys, and conducting a visual inspection of the property itself.

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 1.1 Conduct Client Interview

A thorough client interview may help reveal if there will be any issues relating to whether
or not good title was vested in your client, and/or what types of encumbrances should be
expected when a more formal title search is completed. When conducting the client interview,
ask: (i) if when the client acquired title, a deed was delivered to him or her, or if the client
believes that title was acquired on some other basis and (ii) if the client can provide you with any
mortgage loan documentation, mortgage bills, tax bills, leases or other correspondence or
relevant materials that the client received in connection with his or her ownership of the
property. Generally speaking, bills related to the client’s ownership of the property may be
secured by some type of encumbrance on the property (e.g. a mortgage lien or tax lien). The
client may also be aware of encroachments, tenants, squatters, or disputes with abutting property
owners that relate to the client’s property. Each of these situations may indicate a potential
encumbrance on the client’s property and will be discussed in detail below.

1.2 Review Title Abstract

In addition to the client interview, a very valuable resource for ascertaining the current
state of your client’s title will be the title abstract that will be provided to you by a title examiner
or a title insurance company. The title abstract is a list, typically chronological, of all the
documents that have been filed for record in the deed records that affect your client’s property.
Copies of the actual documents listed should also be available to you (and if they are not, then
you should obtain them). The title abstract should contain all deeds, mortgages or security
deeds, which have not been canceled of record, chancery proceedings affecting your client’s
property and the prior owners in the chain of title, wills, notices of lien filings (e.g., judgment or
statutory liens), and any local or federal tax liens.

1.3 Review Plats and Surveys

In the commercial real estate context, a lender will require its borrower to provide a
survey of the financed parcel. Residential lenders in Georgia have generally stopped requiring
surveys for their mortgages covering single-family residences, but you should inquire whether
your client could provide you with a survey or some other simpler plat or plan for your client’s
property. A good survey will accurately show the location of any improvements on your client’s
property, the boundary lines of your client’s property, and the location of any easements of
record. If a survey is available, you should review it along side your title abstract to confirm
accuracy and consistency between the two. Your review of the survey can also confirm the
accuracy of the legal description of your client’s property and will reveal if there are any
encroachments. The survey should also indicate whether or not any improvements violate
zoning setbacks or height requirements. The surveyor’s certification contained on the survey
may also reveal other factual matters that may not otherwise be ascertainable. If no surveys are
available for your client’s property, you should confirm whether any other plats or plans listed in
the title abstract exist. If so, copies of these plats are of record and should be obtained. Such
plats or plans can reveal similar issues as an accurate survey (although a survey will probably be
more recently accomplished and therefore more up-to-date).

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 1.4 Conduct Visual Inspection of the Property

As a supplement to, or possibly in lieu of your review of a survey, you may visit your
client’s property to conduct a visual inspection. Like a review of a survey, a visual inspection
could reveal the location of any potential encroachments (e.g., overhangs, boundary fences, or
other structures near an abutting property) or adverse possessors. A visual inspection could also
reveal the location of any potential easements. Look for any utility lines or common driveways
that your client may be sharing with an abutter, or access roads or driveways to your client’s
property that do not appear to be within the boundaries of your client’s property.

Section 2 Potential Title Issues and Resolutions

Once the status of the title has been ascertained, a clear picture of any existing
encumbrances should emerge. As indicated above, there may be issues relating to whether your
client has good title, disputes with abutters on the existence of encumbrances, etc. While many
encumbrances to any title may be acceptable or even necessary, other encumbrances may impact
the client’s ability to obtain insurable title. The following describes certain types of
encumbrances that would affect the client’s ability to obtain title insurance and suggested
approaches to resolving each type of potential title issue.

2.1 Existing Mortgages

Typically when a property owner obtains third party financing for the acquisition or
development of the property, the owner’s obligation to repay the loan will be secured by the
lender taking title to the property through a deed to secure debt or a security deed. Although rare
in Georgia, this repayment obligation is secured by a true mortgage lien on the property. Once
the loan has been paid in full, the lending party has an obligation to reconvey title back to the
property owner/borrower. On occasion, a note that has been paid in full may have a
corresponding security deed that has not been properly reconveyed.

If the client originally granted a lending institution an old security deed of record, you or
the client should be able to request a cancellation of security deed, release or quit claim deed
from the lending institution. There is a strong possibility that the original lending institution that
made the original loan has now been sold and therefore is no longer the holder of the promissory
note representing the debt owed. The client may have old bills or related documentation
indicating who was the last known holder or servicer of the promissory note. If the client does
not have any such documentation, the original lending institution should be able to assist in
tracking down the proper contact of the last known holder or servicer of the promissory note.
Alternatively, the loan may have been given to a prior owner of the client’s property. In that
situation, the client will be unable to help with the proper contact information to obtain the
release or quitclaim deed. You should obtain a copy of the recorded security deed, as that should
contain the name of the original lending entity and possibly a primary contact person.

Once the release or quit claim deed has been obtained from the last holder or servicer of
the promissory note, be sure to confirm that the old security deed is properly referenced and that
the legal description matches the legal description of the client’s property. Once a release or quit
claim deed with the proper title references is recorded, the old security deed will no longer

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encumber the property and the security deed will be removed as an exception to the title
insurance policy.

It is possible that the lending institution does not exist anymore or that the final holder or
servicer of the promissory note is impossible to track. A title insurance company will assist in
making this determination. If so, it may be possible for the title insurance company to insure the
property despite of the security deed because the risk of a title claim to the title insurance
company is very small. It would be unlikely for a lender to foreclose upon the property. Also,
if the security deed is very old, the stated maturity date of the underlying loan may have already
passed, and the title company may be able to remove the security deed as an exception to the title
policy using standard title practices in Georgia.

2.2 Statutory Liens

Similar to a lien created by a security deed, there may be other liens on the client’s
property representing security for money owed to third parties. For example, the County Board
of Tax Assessors will periodically assess the property for real estate tax purposes. A tax lien is
imposed on the property for taxes due and payable to the County. While a title insurance policy
will always make an exception for amounts due but not yet payable, if there are any exceptions
listed for prior tax years, these can be removed by obtaining the payoff amount from the County
tax commissioner’s office and paying in full the taxes due (including any interest and penalties).

A statutory mechanic’s lien will be created to secure payments owed for construction
work done on the property. This lien can be discharged through payment in full of any amounts
owed to a particular vendor and the recording of a proper acknowledgment of such payment in
the deed records. If the client indicates that there has been no recent work done to the property,
then an exception for any mechanic’s liens may be removed from the title insurance policy by
having the property owner provide an affidavit to the title insurance company indicating that
there has been no work done to the property in a certain fixed amount of time. Under Georgia
law, an action to collect on a claim must be filed within 12 months of when the claim became
due. If the statutory notice is not timely filed in the deed records, the title insurance company
should disregard this type of lien.

2.3 Heir Property

Your client or a prior owner in your client’s chain of title may have obtained title to the
property through the death of one or more family members. If the family member died intestate,
then there may be no document of record evidencing the passing of title upon the decedent’s
death. Heirship may be established in Georgia through a judicial determination or filing an
affidavit of descent in the deed records. 1 If there is not a judicial determination or affidavit of
descent of record, then your client’s title abstract will not show title properly vesting with your
client, and your client will not be able to obtain title insurance covering the property. If there is a
break in your client’s chain of title as a result of the property passing to your client via intestate

1
Note that certain states and certain title companies might have a strong preference for a judicial determination of
heirship versus recording an affidavit of descent. You should inquire of the title company you are working with
before proceeding down either path, although the judicial determination of heirship is considered in many states to
be a more definitive determination.

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succession, then a proper affidavit of descent should be executed and filed to evidence your
client’s rights in the property as the heir of the decedent. For more details on the proper form of
affidavit of descent refer to a title insurance company.

2.4 Adverse Possession

Unlike other liens and encumbrances listed above which include documents of record
evidencing such lien, an adverse possession claim against your client’s property may impact your
client’s title without a corresponding recorded document. Adverse possession is a doctrine by
which a property owner may lose rights in his property by failing to take action against others
who have taken action with respect to the owner’s property. An adverse possession claim could
negatively impact your client’s title in the context of a boundary dispute or encroachment. Refer
to the Adverse Possession Chapter for more information about adverse possession.

To insure against potential adverse possession claims, a title agent will likely require an
affidavit from your client stating that no other parties are in possession of the premises. Be sure
to confirm that your client appears to be the only occupant during your visual inspection of the
property. If you do have a survey available, you should confirm that the legal description on the
survey matches the legal description on your client’s deed. Conforming legal descriptions
should remove any doubts raised in a boundary dispute. If there is a legitimate boundary dispute,
an accurate survey and title search of the land abutting your client’s property should also be
obtained. If you believe that there is a legitimate potential adverse possession claim against your
client’s property, it may need to be resolved through a suit to quiet title in the county Superior
Court where the property is located.

2.5 Probate Issues

Under Georgia law, real estate passes to the heirs of a decedent at the time of death.
Typically the property will pass to the decedent’s heirs through the probate courts, but until the
will is probated the real estate is treated as if the decedent died intestate. Your title abstract may
reveal former or on-going probate disputes relative to your client’s property. If a decedent in the
chain of title to your client’s property died intestate, the decedent’s heir may have filed an
Affidavit of Descent or completed a judicial heirship determination. Refer to the Intestacy
Chapter for more information about clearing title with respect to probate issues.

2.6 Discrepancies in the Legal Description/Scrivener’s Errors/Other Deed Defects

Standard coverage under a title insurance policy typically includes coverage of risks
associated with erroneous or inadequate legal descriptions and other scrivener’s errors. If the
title agent uncovers such an error, the title company may require the recording of a corrective
deed to fix the error. Typical scrivener’s errors include small typographical errors in the legal
description, a misspelling of a grantor’s name, and the omission of the date of execution. A
corrective deed should state on its face that it is intended merely to correct a specifically named
scrivener’s error. Once recorded, the correction will relate back to the date of the original deed
that the corrective deed was correcting. You should avoid re-executing a new deed to fix any
prior scrivener’s errors since a new deed will be effective as of the new execution date. Note

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that your client may need to provide evidence of ownership of his or her property as of a certain
date. Recording a new deed merely to correct a scrivener’s error could undermine this objective.

The corrective deed can be used to fix typographical errors in the legal description, but
you should treat any discrepancy in the legal description as an opportunity to confirm that the
property intended to be covered in your client’s vesting deed, survey and/or title abstract matches
your client’s expectations about the property your client believes he or she owns.

2.7 Lack of Access

A property’s lack of access to a public road is another defect that will often not be
apparent by simply reviewing record title. Usually this defect is easier to spot if you have a
survey, which would enable you to determine whether the property’s driveway is located
completely within the perimeter of the property’s boundary lines, and/or whether the road that
the driveway connects with is a public road. When absence of either of these elements is
present, a potential problem exists, since the third party that owns the land on which the
driveway or the road is located might be in a position to lawfully interfere with vehicular access
to your client’s property. If this problem exists, you should have a title search done on the
abutting landowner’s property, to see whether the owner of your client’s property may have been
granted an easement over the applicable driveway or road. If there is no such easement of
record, then you can try to approach the third party abutter for an easement. If you are successful
getting the third party abutter to agree to giving your client an easement, you can employ the
process for creating an easement which is set forth in Part 2.9 Encroachments/Disputes with
Abutters below. If the third party abutter refuses to provide an easement, your client may be
able to assert a claim of adverse possession.

2.8 Zoning Violations

Generally, risks associated with zoning regulations are not covered by a title insurance
policy since zoning regulations are not considered an encumbrance on real estate. If your due
diligence on your client’s property reveals a potential zoning violation, you may request
additional zoning coverage through a zoning endorsement for an additional premium. A zoning
endorsement will typically protect your client if the zoning classification is something other than
what is listed in the endorsement or the listed permitted uses are prohibited by the existing
zoning regulations. The title company may require additional items, including a survey and
some zoning regulation supporting documentation. A zoning endorsement is relatively
expensive compared to other endorsements you may encounter. You should discuss the costs
and benefits with your client prior to obtaining the zoning endorsement from the title company.
Also keep in mind that if there is a zoning violation on your client’s property, the zoning
endorsement will not clear the violation. Zoning relief would typically be obtained through the
municipality. Such relief is beyond the scope of this Manual.

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 2.9 Encroachments/Disputes with Abutters

The client’s property may have a building or other structure encroaching onto an
abutter’s property. Similarly, an abutter of the client may be encroaching onto the client’s
property. In either case, it is unlikely that the title abstract will reveal any encroachments. Thus,
any encroachments would have to be revealed through the client interview, a visit to the client’s
property, or a through a review of any surveys or plats of the property.

If the encroachment in question is slight, it may be possible to eliminate it by physically

removing it from the parcel. It is likely, however, that the structure causing the encroachment
cannot be easily moved or removed from the parcel. An alternative to physical removal of the
structure is to create an easement agreement between the client and the abutter allowing the
existence of the structure and creating an easement over the area of the encroachment for the
benefit of the encroaching party. Such a document would have to be properly executed and
notarized then recorded in the county deed records. If the client enters into such an easement
agreement with an abutter, be sure to include a description of the easement in the Schedule A
description of the parcel being insured in the title policy. A similar easement agreement
document could be used to resolve other potential disputes with abutters, including disagreement
over the location of a common boundary line or the use of a common driveway. The goal for
resolving encroachments or other abutter disputes should be (i) to reach a mutually acceptable
agreement between your client and the abutter and (ii) to ensure that your client’s entire property,
including any beneficial rights he or she may have under an easement agreement, is included in
the title insurance coverage.

It is also important to keep in mind that if an encroachment has been in existence for an
extended period of time, then an adverse possession claim may be possible. Refer to the Adverse
Possession Chapter below.

Section 3 Sources for Further Assistance

This Manual is intended to cover the title issues your client is most likely to face. Each
parcel of real estate may bring its own unique title issues that are not covered here. If you are
faced with such an issue, you have many sources for further assistance. First, the Heir Property
Project Manager, the DLA Piper attorneys working on the Heir Property project and the other
volunteer attorneys familiar with these issues may be a valuable resource for help with such
issues as they arise. Also, your title agent contact can assist you with any such issues. You
should always discuss with the title agent what actions may be required by you and/or your client
to allow the title company to issue the proper coverage for your client.

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 CHAPTER 3 CLEARING TITLE

Verifying clear title to real estate in Georgia can be somewhat problematic. Under
Georgia law, title to real estate automatically vests in the beneficiary upon the death of the
owner. As a result, personal representatives (a term which includes executors of estates of those
who die with wills and administrators of estates of individuals who die intestate) in Georgia do
not have to execute deeds to memorialize the passing of title, as many other states require.
Without a deed to evidence the chain of title, it can be difficult for clients to prove they are the
rightful owners of property. To explain how title to real estate is verified, start with the
following scenario:

John Doe has lived in the family home in Fulton County since his mother’s death in 1985.
The last deed to the property was recorded in 1950 and shows John’s deceased grandparents as
the joint purchasers of the property. His grandfather died in 1960, his grandmother died in 1965
and his father died in 1982. He never had any siblings.

In this scenario, John Doe is not the owner of record. While he may have legal title, he
does not have record title. You must recreate the chain of title so John can prove that he is the
owner of the property. Below are the necessary steps to bring a chain of title up to date and
prove that your client has legal title. In addition to the steps outlined below, use the Heirs
Determination Worksheet (Exhibit 1) attached in Chapter 4 to serve as a guide.

Section 1 Determine How the Property is Titled

Determining legal title to property begins with a review of the most recent deed. If the
client does not have it, you can obtain a copy from the local land records office in the county
where the property is located. Exhibit 1 is a map of Georgia counties, and Exhibit 2 is a list of
contact information for the courthouses where you will find land and other records.

The deed should provide a legal description of the property owned, identify the owner(s)
of record and specify how the property is titled (i.e. joint tenancy with rights of survivorship,
tenants-in-common, life estate, etc.). 1 Ideally, the client will be the owner of the property on the
deed, either solely or jointly. In this case, there is no problem with proving legal ownership.

Often the most recent deed will not reflect the client as the record owner. As explained
above, no deed is required in Georgia to transfer land title to a beneficiary upon the death of the

1
There are two types of multi-party ownership. One is joint tenancy with right of survivorship, in which the
property automatically passes to the surviving joint tenant upon the death of the first joint tenant to die. The other is
tenancy-in-common, in which the deceased tenant’s interest does not automatically pass to the survivor but instead
passes under the terms of the deceased tenant’s will or by law if there is no will.

With a life estate deed, the life tenant will have the right to enjoy the property during his lifetime and, upon his or
her death, the property will pass to the remainderman. Typically, a parent or parents hold a life estate for their
lifetimes and then, upon the death of the surviving parent, the property passes to the children. If a child predeceased
the surviving parent, his remainder interest might be extinguished or might pass to his estate, depending on the
language in the deed.

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owner. Furthermore, many families do not probate an estate because they are unaware of the
obligation to do so, they do not have the funds to pay applicable death taxes or they fear
accelerating a mortgage on the property. Thus, if the property has been in the family for
generations, you may find that the owners of record are the client’s ancestors. If the deed
identifies someone other than the client as the record owner, then you must retrace the chain of
title to determine who holds legal title.

In our example, the deed showed John Doe’s grandparents as the owners of the property.
To verify that John Doe has title to the property, you must establish how the property passed
with a review of John’s family tree.

Section 2 Obtain the Client’s Family Tree

You need the client’s family tree for two purposes: (1) to trace the chain of title, as
discussed above, and (2) to identify the beneficiaries of the estate of a decedent who did not have
a will. The family tree should begin with the holders of record and identify all the descendants.
If there are no descendants, you may need to go back to the client’s ancestors and their
descendants. Some client’s may not have a family tree. If this is the case, you will need to assist
in creating this documentation.

Section 3 Retrace the Chain of Title Using Probate Records

In order to trace the chain of title, you will first need to examine the local probate records
in the county where the owner of record resided to determine if that person’s estate was
probated.

The probate records will indicate whether the deceased had a will and, if so, how his
assets were distributed. If there was no will, Georgia’s law of intestate succession determines
how a decedent’s assets will pass. Refer to the Intestacy Chapter, Section 1 for an explanation of
Georgia’s intestacy laws.

If there were no probate proceedings, you will need to file a petition for probate of the
owner of record’s estate. Refer to the Intestacy Chapter, Sections 2-3 for a discussion of probate
proceedings. If you find that title passed from the owner of record’s estate to the client through
some other person or persons, then you will need to repeat this step until title is vested in the
decedent.

In our example, the property was owned by John Doe’s grandparents as joint tenants with
rights of survivorship. When his grandfather died, the property passed automatically to his
grandmother, and she died owning a 100% interest in the property. Note that if his grandparents
had owned the property as tenants-in-common, the half interest owned by John’s grandfather
would not automatically have passed to his grandmother. Rather the interest would pass
pursuant to his will or pursuant to the law of intestate succession.

Let us assume you find that intestate probate proceedings for John’s grandmother were
indeed initiated in Fulton County. The property passed to John’s mother who was an only child.
John Doe’s mother had a will in which she bequeathed the property to him, but there were no

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probate proceedings. You will need to file the mother’s will and initiate a probate petition in
Fulton County. With the completion of the probate proceeding for his mother, John will have a
complete and clean chain of title.

Section 4 Initiate Probate Proceedings, if Necessary

Refer to the Intestacy Chapter, Section 2-3 for a detailed discussion of probate
proceedings.

Section 5 What if It Is Not That Simple?

It is entirely possible that a search of the family tree and the probate records will indicate
that the client does not have legal title to the property, or not to 100% of it. In our example, John
Doe’s grandmother might have had other children who had children of their own. Thus, John
might own only a small fraction of the property as a tenant in common with several of his
cousins. This raises a host of different problems.

On the one hand, the other owners might be willing either to quitclaim their interests in
the property or to assign them to John. This would require a deed in which all the parties join to
convey 100% of the title to John. Neither one would unduly complicate the proceeding.

It may be, however, that other family members are unwilling to give up their interests in
the property. In such cases, you may need to compute the amount that John—and his mother—
expended to maintain the property and pay the taxes since the death of the surviving grandparent.
If the other family members are heirs to fractional interests, they are responsible for their ratable
share of those expenses. The expenses may well exceed the value of the property altogether, in
which case the family members may be willing to grant their interests to John in return for a
release from the ratable share of the expense. (The rental value of the property is also a factor
that might have to be taken into account, and might require separating those expenses reasonably
allocable to a tenant from those usually allocated to a landlord.) It is also possible that John may
have to pay some of his cousins for their interests in the property.

In the worst case, it may be impossible to locate fractional owners of property. The best
solution here would probably be an action to partition the property (Refer to the Partition
Chapter), though some practitioners have also let properties go through tax sale (Refer to the
Georgia Tax Sales Chapter 8, Section 2.), which enables their clients to repurchase the properties
for a nominal amount and obtain title. 2

2
Note that purchasing a property through a tax sale does not provide the purchaser with clear title to the property.

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Chapter 3 Page 3
 EXHIBIT 1: MAP OF GEORGIA COUNTIES

Georgia Appleseed ■ Heir Property in Georgia Attorney Training Manual

 EXHIBIT 2: LAND RECORD INFORMATION FOR
GEORGIA COUNTIES
Appling County Bartow County Brooks County
Appling County Clerk Bartow County Clerk Brooks County Clerk
Court House Square 135 W Cherokee Ave, P.O. Box 665
Baxley, GA 31513-2028 Suite 251 Quitman, GA 31643
Phone: (912) 367-8114 Cartersville, GA 30120 Phone: (229) 263-4747
Phone: (770) 387-5075
Atkinson County Bryan County
Atkinson County Clerk Ben Hill County Bryan County Clerk
P.O. Box 855 Ben Hill County Clerk P.O. Box 757
Pearson, GA 31642 P.O. Box 187 Pembroke, GA 31321
Phone: (912) 422-3552 Fitzgerald, GA 31750 Phone: (912) 653-4681
Phone: (229) 423-2317
Bacon County Bulloch County
Bacon County Clerk Berrien County Bulloch County Clerk
P.O. Box 146 Berrien County Clerk 1 W Altman St
Alma, GA 31510 P.O. Box 446 Statesboro, GA 30458
Phone: (912) 632-7661 Nashville, GA 31639 Phone: (912) 764-5969
Phone: (229) 686-5213
Baker County Burke County
Baker County Clerk Bibb County Burke County Clerk
P. O. Box 548 Bibb County Health P.O. Box 89
Main St. Department Waynesboro, GA 30830
Newton, GA 31770 Attn: Vital Records Phone: (706) 554-2324
Phone: (229) 734-3007 171 Emery Highway
Macon, GA 31217 Butts County
Baldwin County Phone: (478) 749-0102 Butts County Clerk
Baldwin County Clerk P.O. Box 350
201 W. Hancock St. Bleckley County Jackson, GA 30233
Milledgeville, GA 31061 Bleckley County Clerk Phone: (770) 775-8200
Phone: (478) 453-4807 306 SE Second Street
Cochran, GA 31014 Calhoun County
Banks County Phone: (478) 934-3200 Calhoun County Clerk
Banks County Clerk P.O. Box 226
P.O. Box 130 Brantley County Morgan, GA 31766
Homer, GA 30547 Brantley County Clerk Phone: (229) 849-4835
Phone: (706) 677-2320 P.O. Box 398
Nahunta, GA 31553 Camden County
Barrow County Phone: (912) 462-5256 Camden County Clerk
Barrow County Clerk P.O. Box 99
30 N. Broad St., Woodbine, GA 31569
Suite 321 Phone: (912) 576-5601
Winder, GA 30680
Phone: (770) 307-3045

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Candler County Cherokee County Colquitt County
Candler County Clerk Cherokee County Clerk Colquitt County Clerk
705 N Lewis St 90 North St., Suite 340 P.O. Box 639
Metter, GA 30439 Canton, GA 30114-2725 Moultrie, GA 31776
Phone: (912) 685-2835 Phone: (770) 479-1953 Phone: (229) 891-7100

Carroll County Clarke County Columbia County

Carroll County Clerk Clarke County Clerk Columbia County Clerk
P.O. Box 338 PO Box 1868 P.O. Box 58
Carrollton, GA 30117 Athens, GA 30601-2776 Appling, GA 30802
Phone: (770) 830-5801 Phone: (706) 613-3190 Phone: (706) 541-1254

Catoosa County Clay County Cook County

Catoosa County Clerk Clay County Clerk Cook County Clerk
Dept. of Vital Records P.O. Box 550 212 North Hutchinson
182 Tiger Trl Fort Gaines, GA 31751 Adel, GA 31620
Ringgold, GA 30736 Phone: (229) 768-3238 Phone: (229) 896-3941
Phone: (706) 965-7891
Clayton County Coweta County
Charlton County Clayton County Clerk Coweta County Clerk
Charlton County Clerk 112 Smith St P.O. Box 945
100 S 3rd Street Jonesboro, GA 30236 Newnan, GA 30264
Folkston, GA 31537 Phone: (770) 477-3208 Phone: (770) 254-2640
Phone: (912) 496-2230
Marriage Bureau Clinch County Crawford County
(912) 496-2549 County Clinch County Clerk Crawford County Clerk
Clerk 100 Court Square P.O. Box 1028
Homerville, GA 31634 Roberta, GA 31078
Chatham County Phone: (912) 487-2667 Phone: (478) 836-3313
Chatham County Clerk
2011 Eisenhower Drive Cobb County Crisp County
Savannah, GA 31406 Cobb County Clerk Crisp County Courthouse
Phone: (912) 356-2138 1650 County Cordele, GA 31015
Services Parkway Phone: (229) 273-2887
Chattahoochee County Marietta, GA 30008
Chattahoochee County Phone: (770) 514-2300 Dade County
Clerk Dade County Clerk
P.O. Box 299 Coffee County P.O. Box 417
Cusseta, GA 31805 Coffee County Clerk Trenton, GA 30752
Phone: (706) 989-3603 County Courthouse Phone: (706) 657-4414
Douglas, GA 31533
Chattooga County Phone: (912) 384-4799 Dawson County
Chattooga County Clerk Dawson County Clerk
P.O. Box 211 P.O. Box 192
Summerville, GA 30747 Dawsonville, GA 30534
Phone: (706) 857-0700 Phone: (706) 265-2271

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Decatur County Echols County Fayette County
Decatur County Clerk Echols County Clerk Fayette County Clerk
P.O. Box 234 P.O. Box 118 145 Johnson Avenue
Bainbridge, GA 31717 Statenville, GA 31648 Fayetteville, GA 30214
Phone: (229) 246-5474 Phone: (229) 559-7526 Phone: (770) 461-9555

DeKalb County Effingham County Floyd County

DeKalb County Board of Effingham County Clerk Floyd County Vital
Health P.O. Box 307 Records
Office of Vital Records Springfield, GA 31329 315 W 10th St.
445 Winn Way-Box 987 Phone: (912) 754-6071 Rome, GA 30161-2678
Decatur, GA 30031 Phone: (706) 295-6305
Phone: (404) 294-3700 Elbert County
Elbert County Probate Forsyth County
Dodge County Court Forsyth County Clerk
Dodge County Clerk Elbert County Courthouse P.O. Box 128
P.O. Box 818 Elberton, GA 30635 Cumming, GA 30130
Eastman, GA 31023 Phone: (706) 283-2016 Phone: (770) 877-2230
Phone: (478) 374-3775
Emanuel County Franklin County
Dooly County Emanuel County Vital Franklin County Clerk
Dooly County Clerk Records P.O. Box 70
P.O. Box 322 101 S Main St Carnesville, GA 30521
Vienna, GA 31092-0322 Swainsboro, GA 30401 Phone: (706) 384-2403
Phone: (229) 268-4217 Phone: (478) 237-3037
Death certificates: Fulton County
Dougherty County Emanuel County Probate Fulton County Clerk
Dougherty County Clerk Court 136 Pryor St., Ground
225 Pine Avenue PO Drawer 76 floor
Albany, GA 31701-2561 Swainsboro, GA 30401 Atlanta, GA 30303
Phone: (229) 436-1589 Phone: (404) 613-5295
Evans County Fulton County Bureau of
Douglas County Evans County Clerk Vital Statistics
Douglas County P.O. Box 711 99 Butler Street S.E.,
Courthouse Claxton, GA 30417 2nd floor
8700 Hospital Drive Phone: (912) 739-4080 Atlanta, GA 30303
Douglasville, GA 30134 Phone: (404) 730-1260
Phone: (770) 949-2000 Fannin County Info: (404) 730-1261
Fannin County Clerk
Early County P.O. Box 245 Gilmer County
Early County Clerk Blue Ridge, GA 30513 Gilmer County Probate
P.O. Box 525 Phone: (706) 632-3011 Court
Blakely, GA 31723 1 Westside Square
Phone: (229) 723-3033 Ellijay, GA 30540-1071
Phone: (706) 635-4763

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 Phone: (706) 675-3353

Glascock County Habersham County Henry County

Glascock County Probate Habersham County Clerk Henry County Clerk
Court P.O. Box 227 345 Phillips Drive
P.O. Box 231 Clarkesville, GA 30523 McDonough, GA 30253
Gibson, GA 30810 Phone: (706) 754-2013 Phone: (770) 957-6656
Phone: (706) 598-3241
Hall County Houston County
Glynn County Hall County Clerk Houston County Clerk
Glynn County Clerk P.O. Box 1435 200 Carl Vinson Pkwy
P.O. Box 938 Gainesville, GA 30503 Warner Robins, GA 31088
Brunswick, GA 31521 Phone: (770) 535-6921 Phone: (478) 987-2880
Phone: (912) 267-5626
Hancock County Irwin County
Court Gordon County Hancock County Clerk Irwin County Clerk
Court Gordon County Courthouse Square, P.O. Box 287
Clerk Drawer G Ocilla, GA 31774-0287
P.O. Box 669 Sparta, GA 31087 Phone: (229) 468-5138
Calhoun, GA 30701 Phone: (706) 444-5343
Phone: (706) 629-7314 Jackson County
Haralson County Jackson County Clerk
Grady County Haralson County Clerk Courthouse
Grady County Clerk P.O. Box 488 Jefferson, GA 30549
Courthouse Buchanan, GA 30113 Phone: (706) 367-1199
250 N. Broad St., Box 1 Phone: (770) 628-5038
Cairo, GA 31728-4101 Jasper County
Phone: (912) 377-4621 Harris County Jasper County Clerk
Harris County Clerk Courthouse
Greene County P.O. Box 528 Monticello, GA 31064
Greene County Clerk Hamilton, GA 31811 Phone: (706) 468-6705
113 C North Main St. Phone: (706) 628-5038
Greensboro, GA 30642 Jeff Davis County
Phone: (706) 453-7789 Hart County Jeff Davis County Clerk
Hart County Clerk Courthouse
Gwinnett County P.O. Box 128 Hazlehurst, GA 31539
Gwinnett County Probate Hartwell, GA 30643 Phone: (912) 375-5836
Court Clerk Phone: (706) 376-2565
Gwinnett Justice and Jefferson County
Administration Center Heard County Jefferson County Clerk
75 Langly Dr. Heard County Clerk P.O. Box 307
Lawrenceville, GA 30245 North River Street Louisville, GA 30434
Phone: (770) 822-8250 Franklin, GA 30217 Phone: (912) 625-3258

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 Leesburg, GA 31763 Phone: (706) 795-3351
Phone: (229) 759-6953

Jenkins County Liberty County Marion County

Jenkins County Clerk Liberty County Clerk Marion County Clerk
P.O. Box 797 P.O. Box 81 P.O. Box 481
Millen, GA 30442-0797 Hinesville, GA 31313 Buena Vista, GA 31803
Phone: (478) 982-5581 Phone: (912) 876-3635 Phone: (912) 649-5542

Johnson County Lincoln County McDuffie County

Johnson County Clerk Lincoln County Clerk McDuffie County Clerk
P.O. Box 269 P.O. Box 340 P.O. Box 28
Wrightsville, GA 31096 Lincolnton, GA 30817 Thomson, GA 30824
Phone: (478) 864-3316 Phone: (706) 359-4444 Phone: (706) 595-3982

Jones County Long County McIntosh County

Jones County Clerk Long County Clerk McIntosh County Clerk
P.O. Box 1359 P.O. Box 426 P.O. Box 453
Gray, GA 31032 Ludowici, GA 31316 Darien, GA 31305
Phone: (478) 986-6668 Phone: (912) 545-2131 Phone: (912) 437-6636

Lamar County Lowndes County Meriwether County

Lamar County Clerk Lowndes County Clerk Meriwether County Clerk
326 Thomaston Street P.O. Box 1349 P.O. Box 608
Barnesville, GA 30204 Valdosta, GA 31603 Greenville, GA 30222
Phone: (770) 358-1483 Phone: (229) 333-5103 Phone: (706) 672-4952

Lanier County Lumpkin County Miller County

Lanier County Probate Lumpkin County Clerk Miller County Probate
Court 99 Courthouse Hill, Court
100 Main St. Suite A 155 S. South 1st St., Box 1
Lakeland, GA 31635 Dahlonega, GA 30533 Colquitt, GA 31737
Phone: (229) 482-3668 Phone: (706) 864-3742 Phone: (912) 758-4110

Laurens County Macon County Mitchell County

Laurens County Health Macon County Clerk Mitchell County Clerk
Department P.O. Box 216 P.O. Box 187
2121 Bellevue Road Oglethorpe, GA 31068 Camilla, GA 31730
Dublin, GA 31021 Phone: (478) 472-7685 Phone: (229) 336-8094
Phone: (229) 272-2051
Madison County Monroe County
Lee County Madison County Clerk Monroe County Clerk
Lee County Clerk P.O. Box 147 P.O. Box 817
P.O. Box 56 Danielsville, GA 30633 Forsyth, GA 31029

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Phone: (478) 994-7036 Phone: (706) 743-5350 Phone: (478) 783-2051

Montgomery County Paulding County Putnam County

Montgomery County Clerk Paulding County Clerk Putnam County Clerk
P.O. Box 295 116 Main Street Courthouse
Mount Vernon, GA 30445- Dallas, GA 30132-1441 Eatonton, GA 31024
0295 Phone: (770) 443-7541 Phone: (706) 485-5476
Phone: (912) 583-2681
Peach County Quitman County
Morgan County Peach County Clerk Quitman County Clerk
Morgan County Clerk P.O. Box 468 P.O. Box 7
141 East Jefferson Street Fort Valley, GA 31030 Georgetown, GA 31754
Madison, GA 30650 Phone: (478) 825-2313 Phone: (229) 334-2224
Phone: (706) 342-1373
Pickens County Rabun County
Murray County Pickens County Clerk Rabun County Probate
Murray County Clerk 211-1 North Main Street Court Clerk
Third Avenue Jasper, GA 30143-9501 25 Courthouse Square,
Chatsworth, GA 30705 Phone: (706) 692-2515 Suite 215
Phone: (706) 695-3812 Clayton, GA 30525
Pierce County Phone: (706) 782-3614
Muscogee County Pierce County Clerk
Muscogee County Clerk P.O. Box 646 Randolph County
1000 Tenth Street Blackshear, GA 31516 Randolph County Clerk
Columbus, GA 31901 Phone: (912) 449-5011 Court Street
Phone: (706) 653-4331 Cuthbert, GA 31740
Pike County Phone: (229) 732-2671
Newton County Pike County Clerk
Newton County Clerk P.O. Box 377 Rockdale County
1113 Usher Street Zebulon, GA 30295 Rockdale County Clerk
Covington, GA 30209 Phone: (770) 567-8734 922 Court Street
Phone: (770) 784-2045 Conyers, GA 30012
Polk County Phone: (770) 929-4000
Oconee County Polk County Board of
Oconee County Clerk Registrar Schley County
P.O. Box 145 100 Prior St, #101 Schley County Clerk
Watkinsville, GA 30677 Cedartown, GA 30125 P.O. Box 352
Phone: (706) 769-5167 Phone: (770) 749-2103 Ellaville, GA 31806
Phone: (229) 937-2905
Oglethorpe County Pulaski County
Oglethorpe County Clerk Pulaski County Clerk Screven County
P.O. Box 70 P.O. Box 29 Screven County Clerk
Lexington, GA 30648 Hawkinsville, GA 31036 216 Mims Road

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Sylvania, GA 30467 Crawfordville, GA 30631 Lyons, GA 30436
Phone: (912) 564-2783 Phone: (706) 456-2253 Phone: (912) 526-8696

Seminole County Tattnall County Towns County

Seminole County Probate Tattnall County Clerk Towns County Clerk
Court Clerk P.O. Box 387 P.O. Box 178
P.O. Box 458 Reidsville, GA 30453 Hiawassee, GA 30546
Donalsonville, GA 31745- Phone: (912) 557-6719 Phone: (706) 896-3467
0458
Phone: (229) 524-5256 Taylor County Treutlen County
Taylor County Clerk Treutlen County Clerk
Spalding County P.O. Box 148 P.O. Box 88
Spalding County Clerk Butler, GA 31006 Soperton, GA 30457
132 East Solomon Street Phone: (478) 862-3357 Phone: (912) 529-3342
Griffin, GA 30223-3312
Phone: (770) 228-9900 Telfair County Troup County
Telfair County Health Troup County Probate
Stephens County Dept. Court
Stephens County Clerk P.O. Box 328 900 Dallas St.
P.O. Box 386 McRae, GA 31055 La Grange, GA 30241
Toccoa, GA 30577-0386 Phone: (229) 868-7404 Phone: (706) 883-1690
Phone: (706) 886-2828
Terrell County Turner County
Stewart County Terrell County Clerk Turner County Probate
Stewart County Clerk P.O. Box 525 Court
P.O. Box 157 Dawson, GA 31742 P.O. Box 2506
Lumpkin, GA 31815 Phone: (229) 995-5515 Ashburn, GA 31714
Phone: (229) 838-4394 Phone: (912) 567-2151
Thomas County
Sumter County Thomas County Clerk Twiggs County
Sumter County Clerk P.O. Box 1582 Twiggs County Clerk
P.O. Box 246 Thomasville, GA 31799 P.O. Box 202
Americus, GA 31709 Phone: (229) 226-3373 Jeffersonville, GA 31044-
Phone: (229) 924-7693 0202
Tift County Phone: (478) 945-3390
Talbot County Tift County Health
Talbot County Clerk Department Union County
P.O. Box 155 305 East 12th Street Union County Clerk
Talbotton, GA 31827 Tifton, GA 31794 Route 8
Phone: (706) 665-8866 Phone: (229) 386-8373 Blairsville, GA 30512
Phone: (706) 745-2654
Taliaferro County Toombs County
Taliaferro County Clerk Toombs County Clerk Upson County
P.O. Box 114 Courthouse Upson County Clerk

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P.O. Box 889 Webster County Clerk Sylvester, GA 31791
Thomaston, GA 30286 P.O. Box 29 Phone: (229) 776-8207
Phone: (706) 647-7015 Preston, GA 31824
Phone: (229) 828-3615

Walker County Wheeler County

Walker County Probate Wheeler County Probate
Court Court Clerk
P.O. Box 445 P.O. Box 477
La Fayette, GA 30728 Alamo, GA 30411
Phone: (706) 638-3044 Phone: (912) 568-7161

Walton County White County

Walton County Clerk White County Clerk
Court Street Annex 1 P.O. Box 185
Monroe, GA 30655 Cleveland, GA 30528
Phone: (770) 267-4571 Phone: (706) 865-4141

Ware County Whitfield County

Ware County Clerk Whitfield County Clerk
P.O. Box 1069 P.O. Box 248
Waycross, GA 31502 Dalton, GA 30722-0248
Phone: (912) 287-4315 Phone: (706) 278-4707

Warren County Wilcox County

Warren County Probate Wilcox County Clerk
Court Courthouse
P.O. Box 46 Abbeville, GA 31001
Warrenton, GA 30828 Phone: (229) 467-2220
Phone: (706) 465-2227
Wilkes County
Washington County Wilkes County Clerk
Washington County Health 23 East Court Street
Dept. Washington, GA 30673
P.O. Box 271 Phone: (706) 678-2523
Sandersville, GA 31082
Phone: (478) 552-3210 Wilkinson County
Wilkinson County Clerk
Wayne County P.O. Box 201
Wayne County Probate 100 Main St
Court Clerk Irwinton, GA 31042
P.O. Box 1093 Phone: (478) 946-2222
Jesup, GA 31545
Phone: (912) 427-2252 Worth County
Worth County Clerk
Webster County 201 North Main

Georgia Appleseed ■ Heir Property in Georgia Attorney Training Manual

 CHAPTER 4 INTESTACY

Section 1 Intestate Heirs

Unfortunately, many decedents do not leave wills directing how their assets are to be
distributed or appointing the personal representative of their estates. Despite common
misperceptions, the assets of intestate decedents do not pass to the state or to near and remote
heirs equally; they pass according to the legislature’s best guess as to how such decedents would
have written their wills, if they had actually done so. Under Georgia law (O.C.G.A. §53-2-1),
the estate of an intestate decedent is divided as provided below.

1.1 Group I

First to members of a class (Group I) consisting of the decedent’s spouse and children.
The spouse takes the same amount as each of the decedent’s children, but never less than a third
(1/3) of the estate. For example, if there is a surviving spouse and three children, the spouse will
receive a third (1/3) and each child will receive two-ninths (2/9) of the estate. Descendants of
children who predeceased the decedent take the share of their deceased parent per stirpes. If one
of the three children is deceased but had two children of his own, the children of the deceased
child will each receive one-ninth (1/9) of the estate (half of their deceased parent’s two-ninths
(2/9) interest). If the deceased child does not have any children, the spouse and the surviving
two children would then each receive a third (1/3) of the estate.

1.2 Group II

If there are no members of Group I, then equally to members of a class (Group II)
consisting of the decedent’s surviving parents.

1.3 Group III

If there are no members of Group II, then equally to members of a class (Group III)
consisting of the decedent’s surviving siblings, per stirpes, and if none, equally to the decedent’s
surviving nieces and nephews, per stirpes.

1.4 Group IV

If there are no members of Group III, then equally to the members of a class (Group IV)
consisting of the decedent’s surviving grandparents, or all to the survivor of them.

1.5 Group V

If there are no members of Group IV, then equally to members of a class (Group V)
consisting of the decedent’s surviving uncles and aunts, per stirpes, and if none, equally to the
decedent’s surviving first cousins, per stirpes.

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Section 2 Probate Administration
The administration of any estate involves three basic tasks:

• Identifying and collecting the decedent’s assets;

• Paying all debts, valid claims of creditors, administration expenses and any taxes
owed to the federal or state governments; and
• Distributing the remaining assets to the rightful heirs (persons who inherit if the
decedent had no will) or legatees (persons who take under a will).

2.1 Appointment of Personal Representative

To begin the administration process, one or more persons must be appointed by the local
probate court as personal representatives. 1 An interested person may petition the probate court to
be appointed the personal representative by filing letters testamentary with the probate court of
the county of domicile of the decedent, or if the decedent was not domiciled in Georgia at their
death, one may petition the probate court located in the county where any of the decedent’s
property is located.

In an intestate estate, the surviving spouse or sole heir is entitled to serve as personal
representative, unless disqualified. Otherwise, the person selected by a unanimous vote of the
heirs is entitled to serve, unless disqualified. When no such unanimous selection is made, the
probate court will make the appointment that will best serve the interests of the estate,
considering the following order of preferences: (i) the surviving spouse, unless an action for
divorce or separate maintenance was pending between the deceased intestate and the surviving
spouse at the time of death; (ii) one or more other heirs of the intestate or the person selected by
the majority in interest of them; (iii) any other eligible person; (iv) any creditor of the estate; or
(v) the county administrator. A personal representative in Georgia does not have to either be a
Georgia resident or a citizen of the United States. Additionally, a personal representative in
Georgia may also serve without an attorney, though seeking the help of an attorney to advise and
assist in this process is recommended.

2.2 Filing Requirements

The individual seeking appointment must file a petition with the probate court in the county
where the decedent resided or, if the decedent did not maintain a regular residence, in the county
where the decedent’s real property is located. The procedure available and petition required
varies depending on the type of probate that is appropriate. Please visit the website of the
Judicial Branch of Georgia (http://www.gaprobate.org/forms_word.php), which has each
probate administration form in a format that is easy to download. The personal representative’s
identification of each of the decedent’s heirs in the petition will provide a legal document upon
which title insurers can safely rely when certifying title. Along with the petition, the person
seeking appointment must also file (i) a bond for the decedent’s estate “with good and sufficient

1
In Georgia, the term “personal representative” includes executors of estates for people who died with a will and
administrators of estates for individuals who died intestate, or without a will.

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security,” 2 (ii) an oath and (iii) a check for the appropriate filing fee. Bond may be waived upon
request and with the unanimous consent of the heirs of the estate. A request for the waiver of the
bond requirement is included in the initial petition.

2.3 Local Nuances

Before filing a petition, an attorney for an aspiring personal representative should always
contact the local probate court to ascertain the filing fees and any local nuances that must be
followed. Filing fees are set by statute, but there are local assessments that may vary from
county to county. 3

Section 3 Administration of Decedent’s Property

3.1 Personal Representative’s Authority

Once appointed, the personal representative steps into the shoes of the decedent and has
full power to manage estate assets, although certain actions, such as the sale of certain business
interests or real estate, require court approval.

3.2 Decedent’s Property

The decedent’s property can be broken down into two categories – probate assets and
non-probate assets.

(a) Probate Property. Probate assets are those that are titled in the decedent’s name alone.
The probate assets can be further broken down into real property and personal property. Real
Property consists of all interests in real estate. Personal Property is everything else. In most
cases, particularly where many years have passed, the only asset will be the real property. In the
absence of having a personal representative, title to real estate in Georgia automatically passes
and vests in the heir or legatee upon the death of the owner. Upon the appointment of a personal
representative, title to the real property vests in the personal representative, who holds the real
property in trust as a fiduciary for the heirs at law. As a result, real estate is generally not
considered part of the estate unless the personal property is insufficient to pay the decedent’s
debts and taxes owed by the estate. Generally speaking if the decedent owned only real estate,
probate is generally not filed until an heir requires a title that is marketable and documented in
the land records. This creates a problem with the ability to pass clean title to the property, as the
chain of title is not memorialized in the land records. By going through the probate process, a

2
This bond, if required and not waived, must be posted in the amount of two times the “value of the estate”. In
instances where a commercial surety licensed in Georgia is used to post bond, the mere value of the estate is used
(rather than two times the value of the estate). For all purposes the value of the estate shall include the value of the
personalty only; however, where real property is sold and converted into personalty, such as cash, this value shall be
added to the value of the estate.
3
As an example, the Probate Court in Fulton County charges $90 for the filing of the Petition, $15 for the Indigent
Relief Fund, $3 for the Law Library, $3 for the Alternative Dispute Resolution fund, $2 per page for the Petition and
the Letters of Administration, $2 for the Oath and $90 if the Administrator provides notice in the local newspaper.
To find the contact information of a local probate court, please visit http://www.gaprobate.org/find_court.asp.

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record of title is created, and the appropriate steps are taken to insure that all claims are either
paid or barred by statute of limitations

(b) Non-probate Property. Non-probate assets are those that pass by operation of law or by
contract. The most common examples of non-probate property include: (i) property owned as
joint tenants with rights of survivorship where there is a surviving tenant; (ii) property owned as
tenants by the entireties by the decedent and the surviving spouse; (iii) assets that pass by way of
beneficiary designation other than to the decedent’s estate (ex. life insurance, retirement plans,
annuities); (iv) life estates; and (v) bank or brokerage accounts with payable-on-death or
transfer-on-death designations. For purposes of the probate process, a personal representative is
only concerned with the probate assets, and the personal representative’s first duty is to
inventory and collect all probate assets owned by the decedent.

When filing a probate for a client, always verify with a title insurance company the
procedure. Be aware of the different types of administration processes. For guidance, attached
to this chapter is the Probate / Administration Processes (Exhibit 2), a list of the different types
of processes available for the decedent’s estate when either a will exists or when it does not.

3.3 Inventory

If there is a probate of personal property, the personal representative must have it

inventoried unless the court, upon a petition filed by the personal representative with the consent
of all heirs, waives that step. These assets may include, for example, stocks and bonds, life
insurance policies payable to the decedent’s estate, bank accounts that do not pass to another
person at death, jewelry and cars. The inventory must be verified by the oath of the petitioner
and sworn to or affirmed before the probate court or a notary public. Compiling an accurate
inventory can be a time-consuming process, and a petitioner should obtain the waiver, if at all
possible. The petitioner is not required by the probate court to have any of the estate’s assets
appraised, but the petitioner may choose to do so in order to submit an accurate inventory. If,
however, an interested party objects to the inventory submitted by the petitioner, the probate
court may, in its discretion, order the petitioner to have the property professionally appraised.

3.4 Decedent’s Debts and Taxes

In addition to identifying all probate assets owned by the decedent, the personal
representative must also identify all of the decedent’s debts, object to invalid and time-barred
debts, and pay all valid debts and taxes owed by the decedent or the estate.

This process begins with the publication of a notice to the decedent’s creditors within
sixty days of the date the personal representative takes office. This notice must run for four
consecutive weeks in a local newspaper in the city in which the estate’s probate court is located
and is usually paired with a notice to debtors of the estate; forms of these short notices can be
found at the local probate court. Creditors of the decedent have three months following the
fourth publication of the notice in which to make their demands known to the personal
representative. Creditors who do not meet this requirement lose all right to equal participation
with creditors of equal priority to whom distribution is made before notice of such claims is
brought to the personal representative and they may not hold the personal representative liable

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for a misappropriation of funds. However, creditors’ failure to give notice does not extinguish
their rights; if there are sufficient assets in the estate to pay such debts and no claims of greater
priority are unpaid, the personal representative must appropriate those assets to satisfy such debts
notwithstanding a creditor’s failure to comply with the notice requirement.

3.5 Protection of Decedent’s Surviving Spouse and Minor Children

Although a testator in Georgia may generally disinherit his surviving spouse and
children, Georgia has carved out an exception in the interest of public policy. A surviving
spouse and each minor child of the decedent may file a Petition for a Year’s Support, which asks
that specified property, in an amount sufficient to maintain the standard of living of such
individuals for one year, be awarded to the spouse and/or children, which may include the right
to remain in the home they shared with the decedent. 4 In some cases, title to real property can
pass in its entirety to the surviving spouse and/or the minor children through the Year’s Support
statute, without the need for probate administration. The practitioner is well advised to consider
Year’s Support to determine whether it is the most efficient, and perhaps alternative, method to
achieve the client’s goals. The year’s support award is generally free of all unsecured debts of
the estate and takes precedence over any disposition by the Will. All interested persons must be
given notice of this petition. 5 Year’s Support is beyond the scope of this manual. Please consult
an attorney well versed in estate planning for this determination.

3.6 Final Distribution and Account

Once the personal representative has identified all of the probate assets, settled the valid
debts and paid the taxes, he or she may make final distributions to the decedent’s heirs. An
account of all receipts and disbursements made during the course of administration must be filed
with the court, unless waived by the court with written, unanimous consent of all heirs. All real
and personal property will be distributed in accordance with the intestate distribution rules
described above.

3.7 Deed

Although title to real estate vests automatically without the necessity of a deed, it is far
preferable to prepare and record a deed to evidence title. The deed will create a formal record
that can easily be reviewed for future reference. (The lack of a deed in a prior probate is often
the reason the current owner has difficulty in establishing his or her title.).

4
However, a testator by will may make provision for the spouse in lieu of Year's Support, in which case the
surviving spouse must make an election to either take the assets bequeathed to her by the testator or file a petition
for Year’s Support.
5
Additionally, the lien of certain ad valorem taxes on real estate is divested by the award of property as Year’s
Support.

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Section 4 Conclusion
In conclusion, the goals of probate administration are to distribute all property and
specifically to create clear title to the real estate. Clear title allows both the current owner and
subsequent owners to convey or otherwise deal with the property without further legal
impediment. By going through the probate process, you will (i) generate a court order
identifying the decedent’s heirs, (ii) satisfy all known debts, (iii) pay all appropriate expenses
and taxes and (iv) bar all claims against the real estate. This will be a job well done.

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 EXHIBIT 1: HEIRS DETERMINATION WORKSHEET
A.
Name of Decedent: __________________________________
Date of Death: __________________________________
County of Domicile: __________________________________
Address: __________________________________
__________________________________

B.
Name of Proposed Petitioner: __________________________________
Address: __________________________________
__________________________________

C. List of heirs (Spouse and Blood Relatives Only):

a. Name of decedent’s surviving spouse, if any (NOTE: Do not list a person from
which the decedent was divorced at time of decedent’s death):
__________________________________________

b. If a person is named in (a) immediately above and that person has died since the
decedent, show the date of death of the person named in (a):
__________________________________________
c. (This question relates only to the right to serve as administrator.) If there was a
surviving spouse who is still alive, was an action for divorce or separate
maintenance pending between the decedent and the surviving spouse at the time
of decedent’s death? _______________________________________________

NOTE: IF THERE WAS A SURVIVING SPOUSE AND THERE ARE NO CHILDREN OR

DESCENDANTS OF CHILDREN WHO SURVIVED THE DECEDENT, YOU MAY STOP.

Georgia Appleseed ■ Heir Property in Georgia Attorney Training Manual

 d. Children of decedent born in wedlock or legally adopted by decedent:
Living Children Deceased Children

Name Age Name DOD

e. Children of decedent born out of wedlock:

Living Children Deceased Children

Name Age Name DOD

NOTE: IF ALL OF THE CHILDREN OF DECEDENT ARE ALIVE, YOU MAY STOP.

f. Grandchildren of the decedent:

Living Grandchildren

Name Age Parent’s Name

Georgia Appleseed ■ Heir Property in Georgia Attorney Training Manual

Deceased Grandchildren

Name DOD Parent’s Name

NOTE: IF ALL OF THE GRANDCHILDREN OF THE DECEDENT ARE ALIVE, YOU

MAY STOP.

g. Great-grandchildren of the decedent:

Living Great-grandchildren

Name Age Parent’s Name

Deceased Great-grandchildren

Name DOD Parent’s Name

NOTE: IF ALL OF THE GREAT-GRANDCHILDREN OF THE DECEDENT ARE ALIVE,

YOU MAY STOP. IF THERE ARE ANY DECEASED GREAT-GRANDCHILDREN, YOU
MUST ATTACH AN ADDITIONAL SHEET FOR THEIR CHILDREN.

Georgia Appleseed ■ Heir Property in Georgia Attorney Training Manual

 h. Mother and father of the decedent:
Name Age Date of Deceased, if Deceased
(Mother)
(Father)

NOTE: IF ANY PARENT IS ALIVE, YOU MAY STOP.

i. Brothers and Sisters of the Decedent:

Living Brothers and Sisters Deceased Brothers and Sisters

Name Age Name DOD

NOTE: IF ALL OF THE BROTHERS AND SISTERS OF THE DECEDENT ARE ALIVE,
YOU MAY STOP.

j. Nieces and nephews of the decedent:

Living Nieces and Nephews

Name Age Parent’s Name

Georgia Appleseed ■ Heir Property in Georgia Attorney Training Manual

Deceased Nieces and Nephews

Name DOD Parent’s Name

NOTE: IF ALL OF THE NIECES AND NEPHEWS OF THE DECEDENT ARE ALIVE, YOU
MAY STOP.

k. Great-nieces and nephews of the decedent:

Living great-nieces and nephews

Name Age Parent’s Name

Deceased great-nieces and nephews

Name DOD Parent’s Name

NOTE: IF ALL OF THE GREAT-NIECES AND GREAT-NEPHEWS OF THE DECEDENT

ARE ALIVE, YOU MAY STOP.

Georgia Appleseed ■ Heir Property in Georgia Attorney Training Manual

 l. Grandparents of the decedent:
Name Age Date of Deceased, if
Deceased
(Mother’s Mother)
(Mother’s Father)
(Father’s Mother)
(Father’s Father)

NOTE: IF ANY GRANDPARENT OF THE DECEDENT IS ALIVE, YOU MAY STOP.

m. Aunts and uncles of the decedent:

Living aunts and uncles

Name Age Parent’s Name

Deceased aunts and uncles

Name DOD Parent’s Name

NOTE: IF ALL OF THE AUNTS AND UNCLES OF THE DECEDENT ARE ALIVE, YOU
MAY STOP.

Georgia Appleseed ■ Heir Property in Georgia Attorney Training Manual

 n. First Cousins of the decedent who are alive:

Name Age Parent’s Name

NOTE: IF ANY FIRST COUSINS ARE ALIVE, YOU MAY STOP.

The more remote degrees of kinship are determined by counting the number of steps in the chain
from the claimant to the closest common ancestor of the claimant and the decedent, and from said
ancestor back to the decedent. The sum of the two chains is the degree of kinship. The surviving
relatives who have the lowest sum are in the nearest degree and thus inherit the estate equally.

Georgia Appleseed ■ Heir Property in Georgia Attorney Training Manual

 EXHIBIT 2: PROBATE / ADMINISTRATION PROCESSES

This Exhibit lists the probate / administration procedures available for a decedent’s estate
either when a will exists or when it does not.

When a Will Exists

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.

Probate Of Will In Solemn Form/ Letters Of Administration With Will Annexed If there is a
Will but the named Executor is either unable or unwilling to serve, an Administrator C.T.A (with
Will annexed) must be appointed. Any nominated Executor still living must sign a declination, or
there must be testimony that the Executor is unable to serve. A majority of the beneficiaries may
select the Administrator C.T.A. The Court will appoint a guardian-ad-litem for each minor or
incapacitated heir.

Will Filed, Not For Probate If there is no property to pass under the Will, probate is not
necessary. However, the Will of the decedent must be filed with the Probate Court. Real estate,
unlike joint bank accounts, may not automatically pass to a surviving co-owner. If the only
property in the estate is an automobile, title may be transferable through the Tag Agent without
probate being necessary. There is no cost to file a Will not for probate.

When No Will Exists

Permanent Administration This procedure requires notice to all heirs. A surviving spouse or sole
heir is entitled to serve as Administrator, unless disqualified; otherwise, the person selected by a
majority of the heirs is entitled to serve, unless disqualified. Administrators must post bond and
file inventories and returns, unless ALL heirs consent to a waiver of those requirements. If ALL
heirs consent, the Administrator may be given additional powers and authority. Guardians of
minor or incapacitated adult heirs may acknowledge service, consent to selection and consent to
waive requirements, provided the guardian is not the petitioner.

Georgia Appleseed ■ Heir Property in Georgia Attorney Training Manual

Temporary Administration Notice to the heirs is not required, but a majority of the heirs may
select the Temporary Administrator. Powers are limited to collecting and preserving the assets of
the decedent, and the Court may appoint a Temporary Administrator upon any showing of
necessity or appropriateness. No expenditures or disbursements may be made without a special
court order. Temporary Administrators must post bond and file inventories and returns.
Guardians of minor or incapacitated adult heirs may consent to selection, provided the guardian
is not the petitioner.

No Administration Necessary If all debts of the decedent have been paid (or if all creditors
consent or fail to object after notice), if there is no other need for formal administration, and if
the heirs have all agreed on how the estate will be divided, this proceeding may be filed. All
heirs must sign an agreement disposing of the entire estate; guardians of minor or incapacitated
adult heirs may execute the agreement. Creditors who have not consented in writing must be
given legal notice of the filing.

Georgia Appleseed ■ Heir Property in Georgia Attorney Training Manual

 CHAPTER 5 QUIET TITLE

Section 1 Considerations When Competing Interests Exist in the Property

If third parties have interests in the same property as your client, consider the following
potential solutions:

1.1 Voluntary Quit Claim

If the other owners are identifiable and can be located, will they execute quitclaim deeds
to the client? Such an execution will release any and all interest the other owners might have in
your client’s property. See Exhibit 1.

1.2 Quiet Title Actions

If there are persons other than the client with ownership interests, and they are not willing
to sign quitclaim deeds or they cannot be properly identified or located, a bill to quiet title to the
property may be brought in the circuit court of the county where the property is located.

As an initial matter, counsel must make a determination as to the appropriate form of

action. The purpose and basic elements of the two forms of quiet title actions, conventional quia
timet 1 and quia timet against all the world (also described as in rem), 2 are set forth below:

(a) The purpose of a conventional quia timet is to cause to be delivered or canceled any
particular instrument which has cast a cloud over the client’s title to the land or subjects the
client to potential future liability or present annoyance (technically, the client must ask the court
to pass upon the validity of the instrument, decree it to be of no effect, and decree title in the
client, rather than actually ask the court to cancel the instrument). The basic elements of a
conventional quia timet suit to quiet title include:

(i) The client holds some current record title or current prescriptive title to the land,
and the client petitions for cancellation of a particular instrument; and

(ii) The client is in actual possession of the land (if the defendant is in possession, an
action for ejectment is the proper suit), or the land is considered “wild lands”.

(b) The purpose of a quia timet against all the world (also known as in rem) suit to quiet title
is to conclusively establish the title of the land in the client, to determine all adverse claims
against the land, and / or to remove any particular cloud upon title to the land. The proceeding
may be against all persons known or unknown who claim or might claim title to the land,
whether the petition discloses any known possible claimants, “so that there shall be no occasion
for land in this state to be unmarketable because of any uncertainty as to the owner of every
interest therein.” 3 This form of quiet title suit has become a method of clearing clouds to title
1
O.C.G.A. § 23-3-40 (2009).
2
O.C.G.A. § 23-3-60.
3
Id.

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Chapter 5 Page 1
in Georgia. The suit binds “all the world” and without the need for specific instruments creating
clouds to title to be identified. The basic elements of a quia timet against all the world (also
known as in rem) suit to quiet title are as follows:

(i) The client may be in actual and peaceable possession (no constructive possession
permitted), and the Land may be vacant; and

(ii) The client claims an estate of freehold present or future or any estate for years (so
long as no more than five years have lapsed in such estate for years) [includes persons holding
land under tax deed]

The process for determining whether to pursue a conventional quia timet or quia timet
against all the world quiet title action is as follows.

(a) Possession of Property. Determine who (if anyone) is in possession of the subject
property. For a conventional quia timet suit, the client must be in possession to maintain an
equitable petition to remove a cloud upon his title. If the defendant is the party in possession, the
court will dismiss the suit because the plaintiff has an adequate remedy at law (ejectment). 4
However, if the land is wild (that is, it is unenclosed, uncultivated, and remaining in a state of
nature), the client need not be in possession to maintain a conventional quia timet suit. 5 For a
quia timet against all the world suit, there is no requirement that the client be in possession of
the land and there is no requirement that the land be vacant or “wild.” 6

(b) Title to Property. Determine client’s claim of title to the subject property. For a
conventional quia timet suit, the client must assert that he holds some current record title or
current prescriptive title beyond an expectancy of interest, in order to maintain the suit. 7 For a
quia timet against all the world suit, there is also the requirement that the client assert that he
holds some current record title or current prescriptive title, and not only an expectancy, in order
to maintain the suit; however, the “Quiet Title Act” does not require the same proof of title as an
ejectment action. 8 However, Georgia courts have ruled that an easement is insufficient to
support a claim of title necessary for bringing a quiet title suit. 9

(c) Cloud to Title. Determine whether the alleged cloud to title is actionable. For a
conventional quia timet suit, the alleged cloud to title must fall within the specific definition of
what creates a cloud to title and a specific instrument creating the cloud must be identified. In
Thompson v. Etowah Iron, the court held that in order for an instrument conveying real estate to
constitute a “cloud upon title,” the instrument must constitute an apparent title. 10 This decision
is the basis for O.C.G.A. § 23-3-42, which specifies when an instrument constitutes a cloud to
title.

4
Hale v. Turner, 189 S.E. 10 (1936).
5
Hopdins v. Roach, 56 S.E. 303 (1906).
6
O.C.G.A. § 23-3-60.
7
Gilmore v. Hunt, 73 S.E. 364 (1910); In re Rivermist Homeowners Association, 260 S.E. 2d 897 (1979).
8
O.C.G.A. § 23-3-60; see In re Rivermist Homeowners Association, 260 S.E. 2d 897 (1979); Smith v. Georgia
Kaolin Co., 449 S.E. 2d 266 (1984).
9
Dykes Paving and Construction Co. v. Hawk’s Landing Homeowners Association, 647 S.E.2d 579 (2007).
10
91 Ga. 538 (1893).

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Chapter 5 Page 2
 The statute provides that an instrument which, by itself or in connection with proof of
possession by a former occupant or other extrinsic facts, gives the claimant an apparent right in
or to the property may constitute a cloud on the title of the true owner; and the latter may
proceed to have the same removed upon proof that:

(i) He cannot immediately or effectually maintain or protect his rights by any other
course of proceeding open to him;

(ii) The instrument sought to be canceled is such as would operate to throw a cloud
of suspicion upon his title and might be vexatiously or injuriously used against him;

(iii) He either suffers some present injury by reason of the hostile claim of right or,
though the claim has not been asserted adversely or aggressively, he has reason to apprehend that
the evidence upon which he relies to impeach or invalidate the same as a claim upon his title may
be lost or impaired by lapse of time. 11

For a quia timet against all the world suit, there is no requirement that a specific
instrument creating a cloud be identified.

(a) Petition to Quiet Title. A form of a petition to quiet title is attached hereto as Exhibit 2.

(i) A petition to commence a conventional quia timet quiet title action shall be filed
in the county in which the defendant resides or, if the defendant is not a resident of Georgia, the
county in which the land is located, and shall contain and/or allege all of the following:

(1) Certain description of the land at issue (use legal description);

(2) Description and origin of the client’s possession and ownership (or claim of
ownership) of the property; and

(3) Specific identification of the instrument that creates a cloud on the title. 12

(ii) A petition to commence a quia timet against all the world action 13 shall be filed
in the county in which the land is located and shall contain and/or allege the following:

(1) Certain description of the land at issue (use legal description);

(2) Description and origin of the client’s possession and ownership (or claim of
ownership) of the property;

(3) Statement of whether the client’s interest is based upon a written instrument
(whether the same be a contract, deed, will, or otherwise) or adverse possession or
both;

11
Id.
12
O.C.G.A. § 23-3-42 (relief is granted in those cases where the invalidity of the instrument creating the cloud
appears invalid on the face of the instrument or is proven by outside facts O.C.G.A. § 23-3-41).
13
Quiet Title Act, O.C.G.A. § 23-3-60.

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 (4) Description of all adverse claims of which the client has actual or constructive
notice;

(5) List of names and addresses of any possible adverse claimants; and

(6) If the proceeding is brought to remove a particular cloud to title, statement of the
grounds upon which the cloud is sought to be removed. 14

With the petition, the following must also be filed: a plat of survey, a copy of the
immediate instrument(s) of record or otherwise known to the client, if any, upon which any
person might base an interest in the land adverse to the client. 15 It has been held that this
provision is limited to requiring the client to include with the petition the most immediate
instrument upon which his interest is based. 16

Also, the client must file a notice of lis pendens when the petition is filed. 17 The court,
upon receipt of the petition, forwards the petition to a special master. 18 The special master first
determines who is entitled to notice (includes adjacent landowners and all adverse claimants).
The special master will cause process to be served personally on all persons entitled to notice and
to all persons whom the action may concern. 19

If process cannot be served personally, the special master must request that the court
issue an order allowing service by publication. The notice must be printed in the newspaper
where the sheriff’s advertisements appear for the forum county and must contain the name of the
petitioner and respondent, a caption setting forth the court, the character of the action, the date
the action was filed, the date of the order for service by publication, a notice directed to the party
served by publication commanding him to appear at the court within 30 days of the date of the
order for service by publication, and the notice must be signed by the clerk. 20

The special master next ascertains the extent of the petitioner’s title and reports his
findings to the superior court. The superior court then issues a final decree, which must be
recorded in the clerk’s office. Additionally, a marginal reference to the decree must be entered
upon any recorded instrument stated to be affected by the decree. 21 Prior to the special master
issuing his decree, any party has a right to demand a jury trial. 22 Any person not previously a
party has a right to intervene within 30 days from the entering of the final decree. 23

14
O.C.G.A. § 23-3-62.
15
Id.
16
Capers v. Camp, 244 Ga. 7 (1979).
17
O.C.G.A. § 23-3-62.
18
O.C.G.A. § 23-3-53.
19
O.C.G.A. § 23-3-65.
20
O.C.G.A. § 23-3-66.
21
O.C.G.A. § 23-3-67.
22
O.C.G.A. § 23-3-66.
23
O.C.G.A. § 23-3-69.

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 EXHIBIT 1: QUITCLAIM DEED

After Recording Return to:

__________________________
__________________________
__________________________
Attn:______________________

QUITCLAIM DEED

STATE OF ____________
COUNTY OF __________

THIS QUITCLAIM DEED (“Deed”) made this ___ day of _________, 20__, between
_________________________ ("Grantor"), whose mailing address is
_______________________________________, and ________________________ ("Grantee"),
whose mailing address is _______________________________________ (the words "Grantor"
and "Grantee" to include their respective successors and assigns where the context requires or
permits).

WITNESSETH that Grantor, for and in consideration of the sum of TEN AND NO/100
($10.00) DOLLARS in hand paid at and before the sealing and delivery of these presents, and
other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby
acknowledged, by these presents does hereby remise, convey and forever QUITCLAIM to
Grantee

ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lot ____,
____ District, ___________ County, Georgia, and being more particularly
described in Exhibit “A” attached hereto and incorporated by this reference
herein; TOGETHER with all of Grantor’s right, title and interest in and to any and
all easements, rights-of-way, appurtenances, or rights appertaining or in anywise
belonging thereto, including, without limitation, any portion of the Property lying
within the right-of-way of any publicly dedicated street, roadway or alleyway; and
TOGETHER with all of Grantor’s right, title and interest in and to any and all
improvements, structures or fixtures located therein or thereon (the "Property").

This Quitclaim Deed is given to clear title to the Property.

TO HAVE AND TO HOLD the Property to Grantee, so that neither Grantor nor any
person or persons claiming under Grantor shall at any time, by any means or ways, have, claim
or demand any right or title to the Property, or any rights thereof.

[Signature Page Follows]

Georgia Appleseed ■ Heir Property in Georgia Attorney Training Manual

 IN WITNESS WHEREOF, Grantor has executed and delivered this Deed under seal as of
the day and year first above written.

Signed, sealed and delivered in the in the presence of:

By: (SEAL)
Unofficial Witness Name: ______________________________

______________________________
Notary Public

My Commission Expires:

(Notarial Seal)

Georgia Appleseed ■ Heir Property in Georgia Attorney Training Manual

 EXHIBIT 2: PETITION TO QUIET TITLE

IN THE SUPERIOR COURT OF _____________ COUNTY

STATE OF GEORGIA

________________________, *
*
Plaintiff, * CIVIL ACTION FILE
*
v. * NO.____________________
*
ALL PERSONS KNOWN OR *
UNKNOWN WHO CLAIM OR *
MIGHT CLAIM ADVERSELY *
TO PLAINTIFF’S TITLE TO *
REAL PROPERTY KNOWN AS *
___________________, *
_______________ COUNTY, *
GEORGIA, *
*
Defendants. *
____________________________ *

PETITION TO ESTABLISH TITLE AGAINST ALL THE WORLD

COMES NOW, ____________________, Plaintiff in the above-styled action, and,

pursuant to O.C.G.A. § 23-3-60, et. seq., files this Petition to Establish Title Against All the
World and shows the Court as follows:

1.
Plaintiff resides at ____________ (or other appropriate fact pattern for subject property). The
Superior Court of ____________ County has in rem jurisdiction over this matter pursuant to
O.C.G.A. § 23-3-61. Further, venue is proper in ____________ County since it is the county in
which the property at issue is situated. O.C.G.A. § 23-3-62(a).

2.
The land to which Plaintiff seeks to establish clear title is commonly known as
_________________, __________County, Georgia, according to the present system of
numbering houses in ____________ County, Georgia, and is more particularly described as:
(legal description here), a true and correct copy of which is attached hereto as Exhibit A.

Georgia Appleseed ■ Heir Property in Georgia Attorney Training Manual

 3.
Title to the property is currently in the name of ____________________, who acquired
title to and took possession of the property under that certain ______________Deed
dated________________, from ________________________ to ____________________,
recorded in Deed Book______, page ______, __________ County records, a true and correct
copy of which is attached hereto as Exhibit B.

4. (Insert Chain of Title)

For Example: (Property Info)_________was transferred to _________by _______ Deed
dated _____________, recorded at Deed Book ____, Page ____, ___________ County records.
The subject property was transferred to ___________ by Warranty Deed dated _________ __,
20__, recorded at Deed Book ____, Page _____, _________County records.

5. (Insert Reasoning for Action)

For Example: This certain deed is in accordance with the records of the County Tax
Assessor. The past records of the Tax Assessor state that the property is approximately
____________ acres. This acreage would include both the property having the house known as
the lot in the back of the house known as Lot ___, Block ___ on the original survey. While there
is no direct conveyance among the heirs and successors in interest of decedent, the actions of the
family in transferring the property indicate that this parcel was to be considered as a part of the
original parcel. This is evidenced by the conveyance dated _________, in Deed Book ___, Page
___, ___________County records, which Petitioner believes was intended to convey all property
then owned _________ so that no property would remain in her estate upon her death. That this
was her intention is further evidenced by the fact that no heir sought to be appointed executor
under the joint Will that had previously been probated in solemn form.

6.
(Insert Further Information for Quiet Title Argument as Needed)

7.
Furthermore, prior landowners have been maintaining the property, including, but not
limited to general upkeep and payment of property taxes based on the lot size of ________ acres,
which includes both lots on a public, continuous, exclusive, uninterrupted and peaceable basis
for at least twenty years. O.C.G.A. § 44-5-161 and 163. If adverse possession is held for 20
years, a title by prescription arises. O.C.G.A. § 44-5-160. It appears from the lay of the land
and from the actions of prior owners that the lot has been continuously used and maintained as
their own and to the exclusion of all others. See Hughes v. Heard, 215 Ga. 156, 109 S.E. 2d 510
(1959). No adjoining landowner’s have attempted to use any the property for at least 20 years.

8.
Petitioner has completed various steps to insure title to the property including an
Affidavit of Descent and Possession describing the intention of decedents. Additionally, an
attempt was made to have all potential successors in interest sign a quitclaim deed for the lot.

Georgia Appleseed ■ Heir Property in Georgia Attorney Training Manual

 9.
Attached hereto as Exhibit D is a list of the names and addresses, so far as known, of the
owners of lands adjoining the property that is the subject of this proceeding.

10.
Attached hereto as Exhibit E is an abstractive title of the land that is the subject of this
proceeding.
11.
Attached hereto as Exhibit C is a list of all possible adverse claimants of whom Plaintiff
has actual or constructive notice.
12.
Attached hereto as Exhibit F is a copy of the plat of survey of the parcel of land that is the
subject of this proceeding.
13.
As required by O.C.G.A. § 23-3-61, a Notice of Lis Pendens is being filed
contemporaneously with this Petition.

WHEREFORE, Plaintiffs pray:

a. That the Court assume in rem jurisdiction against all the world to establish
Plaintiff’s title to the land pursuant to O.C.G.A. § 23-3-61;
b. That the Court appoint and refer this matter to a Special Master pursuant to
O.C.G.A. § 23-3-63;
c. That process issue directed to all persons who are entitled to notice and to all the
persons whom this action may concern, including service perfected by publication, if necessary,
pursuant to O.C.G.A. § 23-3-66(b);
d. That the Court appoint a Guardian Ad Litem, pursuant to O.C.G.A. § 23-3-66(d),
in the event it is determined that there are persons under a disability or minors, or persons not in
being, unascertained, or unknown who may have an adverse interest;
e. That Plaintiffs have a trial by jury on all issues so triable;
f. That the Court issue a decree to be recorded in the Office of the Clerk of Superior
Court establishing Plaintiffs’ title in the property against all the world and that all clouds to
Plaintiff’s title to the property be removed; and
g. That Plaintiffs have such other and further relief as may be equitable and just
under the facts set out herein.

Respectfully submitted, this ____ day of _________, 20__.

BY: ______________________________

State Bar No.

Attorney for Plaintiff

Georgia Appleseed ■ Heir Property in Georgia Attorney Training Manual

 VERIFICATION

Personally appeared before me the undersigned, ____________, who, being first duly
sworn, depose and say on oath that he is the Plaintiff in the within and foregoing verified Petition
to Establish Title Against All the World and that the facts set forth therein are true and correct to
the best of his knowledge.
____________________________________

Sworn to and subscribed before me this

____ day of ___________, 20__.

______________________________
Notary Public

(Notarial Seal)

Georgia Appleseed ■ Heir Property in Georgia Attorney Training Manual

 IN THE SUPERIOR COURT OF _____________COUNTY
STATE OF GEORGIA
________________________, *
*
Plaintiff, * CIVIL ACTION FILE
*
v. * NO. ________________________
*
ALL PERSONS KNOWN OR *
UNKNOWN WHO CLAIM OR *
MIGHT CLAIM ADVERSELY *
TO PLAINTIFF’S TITLE TO *
REAL PROPERTY KNOWN AS *
_____________, *
_______________ COUNTY, *
GEORGIA, *
*
Defendants. *
____________________________ *

LIS PENDENS NOTICE

Notice is hereby given pursuant to O.C.G.A. § 44-14-610 that the above-styled action
was filed on____________, 20__, at _________ o’clock __.m. in the Office of the Clerk of
Superior Court of _____________ County, Georgia.

Relief is sought against the property described in Exhibit A attached hereto and
incorporated herein.

The relief sought against said property is the granting of a quiet title to _______________

This ____ day of ____________, 20__.

BY: ______________________________
State Bar No.
Attorney for Plaintiff

Georgia Appleseed ■ Heir Property in Georgia Attorney Training Manual

 IN THE SUPERIOR COURT OF ____________COUNTY
STATE OF GEORGIA
________________________, *
*
Plaintiff, * CIVIL ACTION FILE
*
v. * NO. ___________________
*
ALL PERSONS KNOWN OR *
UNKNOWN WHO CLAIM OR *
MIGHT CLAIM ADVERSELY *
TO PLAINTIFF’S TITLE TO *
REAL PROPERTY KNOWN AS *
____________, *
_______________ COUNTY, *
GEORGIA, *
*
Defendants. *
____________________________ *

ORDER APPOINTING SPECIAL MASTER

The above Petition having been read and considered, it is hereby ordered that
___________________, who is authorized to practice law in the State of Georgia and who is a
resident of the _________________ Circuit is hereby appointed Special Master in this case as
provided by O.C.G.A. § 23-3-61, et. seq.

It is further ordered that the Special Master is authorized and directed to proceed with the
duties in this case, all in accordance with O.C.G.A. § 23-3-61, et. seq.
SO ORDERED, this ____ day of __________________, 20__.

_________________________________
Honorable _____________________
Judge, Superior Court
______________County, Georgia

Prepared by:

Georgia Appleseed ■ Heir Property in Georgia Attorney Training Manual

 CHAPTER 6. ADVERSE POSSESSION AND OUSTER IN
GEORGIA

When assisting a client in resolving title issues, the attorney should evaluate, among other
things, whether the client has gained title to the property by adverse possession. Title 44,
Chapter 5 of the Georgia Code provides that public, continuous, uninterrupted and peaceable
possession, accompanied by a claim of right, results in full and complete title vested in the
adverse possessor. To establish title by adverse possession, the claimant would be required to
obtain an order by a court of competent jurisdiction declaring the client the legal titleholder in a
suit to quiet title. The adverse possessor must demonstrate, by preponderance of the evidence,
each of the elements of adverse possession. However, when a client has some property
ownership rights in common with others, whether through devise or intestate succession, the
client will be barred from establishing adverse possession by section 44-5-123 of the Georgia
Code. This section expressly provides that “[t]here may be no adverse possession against a
cotenant until the adverse possessor effects an actual ouster, retains exclusive possession after
demand, or gives his cotenant express notice of adverse possession.” Additionally, title to real
property cannot be gained by the mere abandonment by a previous owner or cotenant. The
attorney should review the elements of adverse possession, ouster and abandonment to determine
if the circumstances of client’s case warrant further action under these theories.

Section 1 Adverse Possession

1.1 Georgia Statutory Provision

In Georgia, adverse possession is governed by Title 44, Chapter 5 of the Georgia Code,
as interpreted by case law. Various sections interact to create the adverse possession landscape,
the most pivotal being §§44-5-161, 44-5-163, and 44-5-164. Georgia courts generally require
that the adverse possessor prove that the possession was:

(a) Accompanied by a claim of right;

(b) Public;
(c) Continuous and uninterrupted;
(d) Exclusive; and
(e) Peaceful. 1

1.2 Claim of Ownership

Claim of ownership can be established when the possessor acts contrary to the rights of
the true owner (in many of the applicable cases, the “true owner” would be a relative of the
possessor), such as an erection of and subsequent occupancy of buildings. 2 Note that payment of

1
Smith v. Board of Educ., 168 Ga. 755 (1929).
2
Shiels v Roberts, 64 Ga. 370 (1879).

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Chapter 6 Page 1
taxes is but one factor to be considered along with other evidence and receives no elevated
treatment by the courts or by statute. 3

1.3 Public

The possessor must act in a sufficiently public way toward the property to warn any
reasonably diligent owner that someone else is in possession of the property. Acts of possession
may be evidenced by enclosure, cultivation, or any use and occupation of the lands, which are of
such an open, public and notorious character, as would be calculated to attract the attention of the
true owner exercising ordinary vigilance. 4 Actual notice to the true owner of adverse nature of
possession is required only when the possession began as permissive. 5 Payment of taxes is
evidence of notoriety of possession. 6

1.4 Continuous and Uninterrupted

Continuous does not mean constant. Behavior that is appropriate for an average owner of
property is generally sufficient. Courts interpreting this element do not require absolute
mathematical continuity, but rather undertake an analysis of the substance of possession. 7
Unlike many other jurisdictions, a mere entry by the true owner does not necessarily break
continuity. 8 If the true owner or a third person dispossesses the adverse possessor, the clock is
reset and will start running in favor of the former adverse possessor only if and when he recovers
possession. Acts of owners that fall short of interruption, however, such as requests of the
possessor to leave or the filing of a complaint without follow up, do not reset the adverse
possessor’s clock. Possession must continue for a period of 20 years; 9 unless the claimant can
produce written evidence of title, then the time period is reduced to 7 years. 10 Also, note that a
claimant in possession of only a portion of the property described in the purported instrument
giving rise to color of title will have grounds to claim the entirety of property so described.

1.5 Exclusivity

The claimant must demonstrate that he or she is exercising dominion as a sole owner, to
the exclusion of, and in opposition to, the claims of all others. Generally, a person who does not
attempt to exclude others is generally not regarded as a possessor of property; however, in
Georgia there is one caveat to consider. Joint adverse possession may be found where a joint
claim is made as against the rest of the world. 11 On the other hand, however, where two or more
persons without color of title are in joint possession make claims to the same property, neither
will be found to have the exclusive possession necessary to establish prescriptive title through
adverse possession. 12

3
Culbreath v. Patton, 73 Ga. App. 667 (1946).
4
Pridgen v. Coffee County Bd. of Educ., 218 Ga. 326 (1962).
5
Proctor v. Heirs of Susie Jernigan, 273 Ga. 29 (2000).
6
Georgia Power Co. v. Irvin, 267 Ga. 760 (1997).
7
Walker v. Steffes, 139 Ga. 520 (1913).
8
Rutherford v. Hobbs, 63 Ga. 243 (1879).
9
GA. CODE ANN. § 44-5-163
10
GA. CODE ANN. § 44-5-164
11
Carter v. Beckton, 250 Ga. 617 (1983).
12
Id.

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 1.6 Peaceful

Little authority exists regarding this requirement. Scholars opine that the terms
“uninterrupted” and “peaceable” should be read together, meaning that the possession should not
be broken by an ouster and/ or undisturbed by successful litigation. 13

1.7 Other considerations

(a) Tacking. Georgia law allows tacking of one adverse possession to another to reach the
statutory period as long as there is privity of a contract, privity of estate or privity of blood
relation between the successive possessors. Privity exists when the possession of the second is in
some way derived from or explained by that of the first and may be established by conveyance,
agreement, heirship or devise, which in fact transfers possession. Note that the prior possession
must not have been derived by fraud, even if the claimant is innocent. 14

(b) Future Interests / Life Estates. Where a future interest exists, no adverse possession
commences against the future interest holder until the interest of the future interest holder
becomes possessory, 15 unless the remainderman’s right to possession is accelerated by waste. 16
Similarly, an adverse possessor of a life estate may acquire title only to the life estate as against
the holder of the life estate interest.

(c) Color of title. Color of title is found where a claimant relies on a document which
purports to convey title but fails to do so; common examples are defective deed and deeds made
by persons who never owned the property, such as a deed made by a husband conveying the
wife’s property. 17 Note that devise of real property in a will, 18 a letter containing a gift of land, 19
and instruments dividing land 20 have been held to be color of title; however a mortgage is not
found to be color of title in Georgia since, even if valid, it would not pass title to the property. 21 .
An adverse possessor who possesses under color of title where the instrument is either recorded
or its content made known to the true owner achieves an advantaged position, and may acquire
title not only to the real property actually possessed, but also all of the lands described in the
instrument. 22 For example, if the possessor were able to demonstrate that the elements of
adverse possession are met with regard to the house and barn, but not the fields (i.e., for failure
to cultivate), if these fields were described in the instrument then the adverse possessor’s claim
would also extend to the fields.

(d) Disability. In Georgia, like most jurisdictions, the prescriptive period will not run while
the true owner is the subject of some disability, such as minors, incarcerated persons, the insane
or where the owner is vested with title that does not give him the right to immediate possession.
Note, however, that unlike most jurisdictions, in Georgia the prescriptive period merely tolls
13
1 DANIEL F. HINKEL, PINDAR’S GEORGIA REAL ESTATE LAW AND PROCEDURE §12-24, 823 (6th ed. 2004).
14
GA. CODE ANN. § 44-5-172; Farrow v. Bullock, 63 Ga. 360 (1860).
15
Verdery v. Savannah, Fla. & W. Ry. Co., 82 Ga. 675 (1889).
16
GA. CODE ANN. § 44-6-83.
17
Carpenter v. Booker, 131 Ga. 546 (1908).
18
Harriss v. Howard, 126 Ga. 325 (1906).
19
Wooding v. Blanton, 112 Ga. 509 (1900).
20
Shiels v. Lamar, 58 Ga. 590 (1877).
21
Phillips v. Bond, 132 Ga. 413 (1909).
22
GA. CODE ANN. § 44-5-167.

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Chapter 6 Page 3
while the owner is disabled, and periods occurring prior to the disability can be tacked on to
periods occurring once the disability has been lifted. 23

Section 2 Ouster 24
Because each co-owner of real property is entitled to possession of the whole, no
cotenant or joint tenant may object to the possession of another. Therefore, the possession of any
one cotenant or joint tenant is not adverse to another, absent an ouster. This may be a common
problem for Georgia residents who, by virtue of intestate succession or devise, have obtained
some form of joint title along with various related cotenants.

Ouster occurs if the possessor asserts a right to possession independent of or against

another owner and makes this owner aware of the change. Actual ouster, notice of intent to
exclude or other acts which would put the co-owner in a position to sue are necessary to begin
effectively the statutory period for adverse possession. Note that an attempt by one cotenant to
convey the entire fee will begin the prescriptive period when coupled with possession by the
grantee. 25

Section 3 Abandonment
Once an adverse claimant’s interest has met the statutory requirements, including the
period of prescription, title ceases to be dependent upon continuous maintenance of possession. 26
Title to real property, distinguished from interests such as easements, cannot pass by mere
abandonment. 27 Thus, a client who occupies land that was abandoned by a previous owner will
be required to gain title by some other method, such as adverse possession in conjunction with
ouster.

23
GA. CODE ANN. § 44-5-171.
24
Supra, note 1.
25
Andrews v. Walden, 208 Ga. 340 (1951).
26
Note, however, that abandonment by an adverse possessor may constitute evidence of recognition by the adverse
claimant of a superior title. Tarver v. Depper, 132 Ga. 798 (1909).
27
Id.

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 CHAPTER 7 PARTITION
A person who becomes a co-owner of real property in Georgia due to intestacy laws may
wish to consider a partition of such property at some point during his or her ownership of it. A
partition is the process by which a court divides the property between co-owners of a particular
parcel in accordance with their respective interests, either by a partition in kind (where the land
is physically divided up between the co-owners), or a partition by sale (where the land is sold
and the proceeds are divided between the co-owners).

Partition may be a useful remedy if the co-owners of a parcel cannot agree on the use and
possession of the property, or if the number of co-owners complicates the management of the
property. These situations often arise between family members who receive undivided fractional
interests in property from deceased relations via intestate succession. The parties’ use of the
property may be subject to greater risk if any of the co-owners sell their respective interest in the
property to unrelated third parties. An unrelated third party who acquires those interests may
seek to have the property partitioned. In some cases, this may lead to one or more co-owners
losing their home place on the property and/ or losing the property that has been within their
families for generations, with co-owners receiving a fraction of the value that the parties or the
market would ascribe to the property. By taking the initiative to have their property partitioned,
parties can gain control over the division of their property, and over choosing their neighbors.

This chapter is intended to be a step-by-step guide through the most common issues
facing the attorney representing the client with respect to partition. It is a summary for the
benefit of attorneys who may have a general knowledge of Georgia real property law but who do
not practice in those areas on a regular basis. This chapter addresses the basics of a statutory
partition proceeding (Section 1), as well as when an equitable partition is appropriate (Section 2).
Sample pleadings are included as exhibits at the end of the chapter.

Section 1 Statutory Partitions

1.1 Who May Apply for Partition

The client may apply for partition if the client has at least common interest in the
property through purchase, as a beneficiary to intestate succession, upon the reversion of a life
estate to the original grantor’s estate, or otherwise. However, to the extent the client’s interest in
the property was conveyed to the client by a document (such as a deed or a will), that document
must fail to state how such property shall be divided among the common owners. 1

If the client is a life tenant with respect to certain real property, they may apply for
partition, although the real property in question may only be partitioned in kind and not by sale.
As with any partition in kind (see below), the court must determine that the property is capable
of a fair and equitable partition. 2 Generally, a partition by a life tenant will only be effective
during the life of the life tenant. 3

1
O.C.G.A. § 44-6-160 (2009).
2
O.C.G.A. § 44-6-172 (2009).
3
Teasley v. Hulme, 150 Ga. 495, 104 S.E. 150, 153 (Ga. 1920).

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Chapter 7 Page 1
 Property that is encumbered by an easement may be partitioned. 4 Property may also be
partitioned if it is encumbered by a deed to secure debt; however, the holder of that security deed
must be a party to the partition. 5

Generally, the client should have actual legal title to the property to apply for partition. 6
However, in some cases an equitable interest in the property will be sufficient to apply for
partition, if the court finds that such interest is the legal equivalent of title. 7 For example, if
another co-owner unlawfully ousted the client from possessing its property, the client would
have an equitable cause of action for partition. 8

1.2 The Statutory Partition Process - Partitions in Kind

(a) Notice. Should the client decide to apply for a writ of partition, he or she must first give
the other concerned parties at least twenty days’ notice of his or her intention to make the
application. If any of the other parties is a minor, a person with a mental or cognitive disability,
or a beneficiary of a trust, such notice must be served on such party’s guardian or trustee, as the
case may be. If any of the parties reside outside of Georgia, the court may order a service by
publication, as it deems appropriate. 9 Caution: if a Georgia resident is temporarily absent from
the State and is not present for the partition proceedings, he or she may move to set aside a
partition judgment even if the resident was served with notice. 10 A sample notice of application
is included as Exhibit 1.

(b) Applying for Partition.

(i) Jurisdiction and Venue: The Georgia Superior Courts have jurisdiction over
partition proceedings. The client should apply for partition in any county in which all or a
portion of the land lies. 11

(ii) Application: The client may commence a partition action in Superior Court for a
writ of partition. The application must describe the premises to be partitioned as well as the
shares and interests of the parties, and must set forth clearly the facts and circumstances of the
case. 12 The application may, but does not have to, indicate whether the client would prefer a
partition in kind or by sale, and/or specify the interest of the client and any other party having an
interest in the land. 13 A Sample Complaint to Partition in Kind (Exhibit 2) is attached to this
chapter.

4
See City of Warm Springs v. Bulloch, 213 Ga. 164, 97 S.E. 2d 582, 583 (Ga. 1957).
5
Leggitt v. Allen, 85 Ga. App. 280, 69 S.E. 2d 106, 108 (Ga. App. 1952).
6
O.C.G.A. § 44-6-160 (2009).
7
Adams v. Butler, 135 Ga. 405. 69 S.E. 559, 560 (Ga. 1910).
8
See Mills v. Williams, 208 Ga. 425, 67 S.E. 2d 212, 217 (Ga. 1951).
9
O.C.G.A. § 44-6-162 (2009).
10
O.C.G.A. § 44-6-171 (2009).
11
O.C.G.A. § 44-6-160 (2009).
12
Id.
13
See Wright v. Hill, 140 Ga. 554 (1913); Dollar v. Dollar, 214 Ga. 499 (1958).

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 (iii) How to Apply. If the client is an adult and free from disability, he or she may apply
either in person or by his or her agent or attorney in fact or at law. If the client is a minor, a
person with a mental or cognitive disability, or the beneficiary of a trust, the client’s guardian or
trustee (as the case may be) may make a partition application for the benefit of the client.14

(c) Initial Objections. During the term of the court when the application is made, any party
named in the application may file objections to the right of the client to seek partition or to the
manner of partition sought by the client. If the objecting party provides sufficient evidence to
cast doubt as to the client’s claims, a jury will try the issue. 15

(d) Order to Issue Writ. Once the application has been made, and the court has received due
proof that proper notice has been given, the court will examine the client’s title and share of the
premises to be partitioned. If the court is able to confirm the client’s title and share, the court
will pass an order directing the clerk of the court to issue a writ of partition. 16 However, if the
client or any other party in interest convinces the court that a partition in kind would not be fair
and equitable, the court will proceed with a partition by sale. If this is the case, please refer to
Part 1.3 The Statutory Partition Process – Partitions by Sale, below. Otherwise, the court
will then direct the writ to five freeholders of the county to act as partitioners. 17

(e) Notice of Writ. The partitioners should give all parties at least eight days prior notice of
the time of executing the writ. 18 A sample notice of writ (Exhibit 3) is attached to this chapter.

(f) Issuance and Return of Writ. After the notice of writ, the court will swear the partitioners
to execute the writ, and issue the writ to the partitioners. Once the writ is issued, the partitioners
will have three months to determine a just and equal partition of the premises and related
tenements, all in proportion to the shares claimed and in a manner deemed most beneficial to the
common owners. The partitioners may engage a surveyor to assist them in this process. Once
the partition is determined, the partitioners will attach their conclusions to the writ and return the
writ to the court. 19

(g) Second Objection Period. Once the writ has been returned, any party to the proceedings
will have a second opportunity to file objections to the rights of the client, the writ itself, or the
return of the partitioners. Should the court determine that a basis exists for such objections, a
jury in the Superior Court will try the issues in question. 20

(h) Final Judgment. If no objection is filed to the return of the partitioners, or if filed, the
jury on the trial finds for the client, the return of the partitioners will be made the judgment of the
court. Such judgment will be final with respect to all parties with interest in the property; to the

14
O.C.G.A. § 44-6-162 (2009).
15
O.C.G.A. § 44-6-165 (2009).
16
O.C.G.A. § 44-4-163 (2009).
17
Id.
18
O.C.G.A. § 44-6-164 (2009).
19
Id.
20
O.C.G.A. § 44-4-165 (2009).

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extent such parties were notified of the client’s application and of the writ’s execution. 21 If the
jury sustains any objections to the partitioners’ return, or if the court determines that the partition
proposed by the partitioners would be unfair or unjust, the court will award a new partition to be
made if the interested parties will appear. 22

1.3 The Statutory Partition Process – Partitions by Sale

(a) When is a Partition by Sale Appropriate. A sale by partition is appropriate when the
court is convinced that a fair and equitable division of the property cannot be made in kind. 23
Examples noted by statute include:

(i) Existing improvements make division practically impossible, or would make one
parcel more valuable than others.

(ii) The property is valuable for mining purposes.

(iii) The property is useful for the erection of mills and other machinery, and such
machinery could not be erected if the property was divided.

(iv) If a partition in kind would cause a depreciation of the value of the entire property.

(b) Partitions by Sale – The Process. Once the court has determined that a partition by sale is
appropriate, the court will appoint three qualified persons to make appraisals of the property.
The average of the three appraisals shall constitute the appraised price of the property. Notice of
the amount of the appraised price is then served to all parties in interest within five days after the
appraised price is established. 24

Within fifteen days after the appraised price is established: (A) the client, or any other
person petitioning for partition of the property, may, upon request to the court, withdraw as a
petitioner but remain a party with interest in the property; and (B) any party with an interest in
the property may become a petitioner in the partition action. If, after fifteen days, there are any
petitioners remaining, then each petitioner will be entitled to receive its proportionate share of
the appraised price. After receiving the proportionate share, the petitioners shall then have no
further claims to or interest in the property. If, after fifteen days, no petitioner remains, then the
court shall dismiss the partition proceeding, and the client and all other petitioners who have
withdrawn shall be liable for the costs of the partition action.

If any petitioners are remaining after fifteen days, then, no sooner than sixteen days but
no later than ninety days after the appraised price is established, the other parties in interest must
remit to the court an amount sufficient to pay the petitioners their proportionate shares of the
appraised price. If the parties in interest do not remit sufficient funds to cover payment to the
petitioners, then the property shall be subject to public sale. (Note: In such event, please skip to
1.3(c) Public Sales, below).

21
O.C.G.A. § 44-4-166 (2009).
22
Id.
23
O.C.G.A. § 44-6-166.1 (2009).
24
Id.

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Pursuant to the above paragraph, a party in interest may pay up to the amount proportionate with
the petitioners’ share of the property. In addition, a party in interest may also pay another party’s
proportionate share of the remittance. In that case, the proportionate shares of the parties in
interest shall be adjusted accordingly. Stated differently, if more than one party who had not
petitioned the court for a partition by sale wishes to exercise their right to buyout interests under
this section, each of these co-tenants shall be entitled to purchase a portion of the interest that is
available to be bought out at a level that is equal to the co-tenant’s existing percentage ownership
divided by the total percentage ownership of all co-tenants participating in the buyout.

Within ninety-five days after the appraised price is established, the client and other petitioners
shall convey their interest in the property to the remaining parties in interest, and the client and
other petitioners will receive payment equal to their proportionate share of the appraised price.
The client, the other petitioners, and the remaining parties in interest shall be liable for the costs
of the sale and proceedings in proportion to their respective shares in the property prior to sale.
Example: Client has a 20% undivided interest in Blackacre, X has a 30% undivided
interest, Y has a 20% undivided interest, and Z has a 30% undivided interest. Client, X
and Y apply for a partition, and the court determines that a partition by sale is
appropriate. The appraised value of Blackacre is $120,000.

Ten days after the appraised value is established, Y withdraws as a petitioner, leaving
Client and X as petitioners.

Twenty days after the appraised value is established, Y and Z agree that Z will pay 1/2 of
Y’s remittance obligation. Y and Z must combine to remit $60,000 to the court (50% of
the appraised value of $120,000) because Client’s and X’s total interest in Blackacre is
50%. Since Z has agreed to pay 1/2 of Y’s obligation, Z will pay $45,000, and Y will pay
$15,000.

Ninety-five days after the appraised value is established, Client and X convey their
interest in Blackacre to Y and Z. In return, the court pays Client $24,000 (20% of the
appraised value) and X $36,000 (30% of the appraised value).

Since Z paid $45,000 (75% of the amount required to pay Client and X for their shares of
Blackacre), Z will have a 67.5% undivided interest in Blackacre going forward. This
amount is based on the 30% undivided interest Z already owned, PLUS the 42.5%
interest Z acquired at the sale (Z paid for 75% of Client’s and X’s combined interest).
Y, who paid just $15,000 (25% of the amount paid to Client and X), will have a 32.5%
undivided interest in Blackacre. This amount is based on the 20% undivided interest Y
already owned, PLUS 12.5% interest Y acquired at the sale.

(c) Public Sales. If a court decides that a partition by sale is appropriate, but the parties in
interest fail to provide sufficient funds to cover payment to the petitioners for their interest in the
land, the court will order a public sale of the land. When this occurs, the court will appoint three
individuals to conduct the sale in accordance with such terms as the court may prescribe. The
sale process is as follows: (i) the sale will occur the first Tuesday of the month; (ii) the sale will
take place in the location where public sales take place for the county in which the land is
located; (iii) notice will be provided by advertisement in a public newspaper once a week for

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four weeks. At the completion of the sale, the proceeds will be divided amongst all co-owners
in proportion to their respective interests after deducting the expenses of the proceedings.
Additionally, all co-owners will execute the necessary conveyance documents to the purchaser.
If a co-owner fails to do so, two or three of the commissioners may execute a deed of
conveyance to the purchaser on that co-owner’s behalf.

1.4 Discretion of the Court

Pursuant to O.C.G.A. § 44-6-170, “in any extraordinary case not covered by Code
Sections 44-6-160 through 44-6-169, the court may frame its proceeding and order so as to meet
the exigency of the case without forcing the parties into equity.” As such the court may award
attorneys’ fees. 25 The court’s discretionary power in the partition process is discussed below for
both in kind and by sale partition actions.

For a partition in kind, the court may require that an improved portion of the land may be
included in the allotment of the cotenant who improved it.26 Additionally, if the court
determines that an equal or proportionate partition cannot be made or made advantageously, then
the court may require a co-owner(s) to pay the other co-owner(s) an amount that the court
believes would compensate the other co-owner(s) for the discrepancy between a “fair” partition
and the actual partition. This practice is known as “owelty.” 27

Alternatively, in a partition by sale, the court may award to the purchaser a part
previously sold ultra vires by a co-owner. 28 Moreover, the court may consider whether any
parties to a partition incurred expenses in maintaining the partitioned property, so that the
property may be divided accordingly. 29

Overall, the court may also deny a partition altogether if the court determines that the
interest of each party to the proceeding will not be protected fully. 30 For example, the court may
(but is not required to) vacate an order of sale for property where the reason for a sale has
changed during the course of proceedings. 31

1.5 Post-Partition Remedy.

The Superior Court’s judgment in a partition proceeding is deemed final as to all notified
parties. However, any party that is not notified of the proceedings, or is out of the State during
the proceedings, may move the court to set aside the judgment for up to twelve months after
rendition of the judgment. Also, any party who is a minor or a person with a mental or cognitive
disability, and has no legal guardian may move to set aside judgment for up to twelve months
after coming of age, gaining or regaining mental competency, or having a guardian appointed. 32

25
See Nixon v. Nixon, 197 Ga. 426, 29 S.E. 2d 613 (Ga. 1944).
26
Walton v. Ward, 142 Ga. 385, 82 S.E. 1027 (Ga. 1914).
27
See Collier v. Bank of Tupelo, 190 Ga. 598, 10 S.E. 2d 61 (Ga. 1940).
28
Lane v. Malcolm, 141 Ga. 424, 81 S.E. 125 (Ga. 1914).
29
Baker v. Baker, 245 Ga. 525, 250 S.E. 2d 436 (Ga. 1998).
30
O.C.G.A § 44-6-170 (2009).
31
See McClain v. McClain, 241 Ga. 162, 243 S.E. 2d 879, 880 (Ga. 1978).
32
O.C.G.A. § 44-6-171 (2009).

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Section 2 Equitable Partitions
2.1 When Appropriate

Equity has jurisdiction only when the statutory remedy is insufficient, or particular
circumstances render an equity proceeding more suitable or just. 33 Equitable partition will be
denied where statutory partition is available, and the burden is on the party seeking partition to
prove the need for an equitable partition.34 The following are examples of where equitable
partition is appropriate:

(a) Where the co-owners’ interest in the land was conveyed or is governed by unwritten
agreements, or by written agreements of questionable validity. 35

(b) Where the partition action involves equitable claims, such as a claim for an accounting or
an assertion of estoppel. 36

(c) Where the partition action is part of a group of other disputes. 37

(d) Where the rights of a party to the dispute are based on prescription. 38

(e) Where zoning requirements make a statutory partition in kind impracticable. 39

(f) Where interests of co-owners cannot be definitely ascertained and set apart by law. 40

(g) In divorce proceedings, where property is jointly owned by husband and wife. 41

(h) Where parties to the proceedings have claims for expenses those parties incurred in
preserving the estate, or for rents received by other parties with respect to the estate. 42

33
O.C.G.A. § 44-6-140 (2009).
34
See Burnham v. Lynn, 235 Ga. 207, 219 S.E. 2d 111, 112 (Ga. 1975).
35
See Coker Properties, L.P. v. Brooks, 278 Ga. 638, 604 S.E. 2d 766 (Ga. 2004).
36
Ibid.
37
Gorman v. Gorman, 239 Ga. 312, 236 S.E. 2d 652, 653 (Ga. 1977).
38
Bailey v. Johnson, 247 Ga. 657, 278 S.E. 2d 384, 385-6 (Ga. 1981).
39
See Chaney v. Upchurch, 278 Ga. 515, 603 S.E. 2d 255, 256 (Ga. 2004).
40
Fountain v. Davis, 71 Ga. App. 1, 29 S.E. 2d 798, 803 (Ga. App. 1944).
41
See Reaves v. Reaves, 244 Ga. 109, 259 S.E. 2d 52, 53 (Ga. 1979).
42
See Taylor v. Sharpe, 221 Ga. 282, 144 S.E. 390, 391-2 (Ga. 1965).

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 2.2 Equitable Partition Proceedings

The Georgia Superior Courts have jurisdiction over equitable partition proceedings. 43
The client should apply for partition in the county in which the defendants reside. 44

The notice to parties required for statutory partition proceedings is insufficient for
equitable proceedings. Instead, the general requirements for actions regarding process and
service apply. 45

In every case, the court will mold its decree to meet the general justice and equity of each
cotenant and in its discretion may postpone or deny either a partition or a sale if it appears that
the present or prospective interest of any cotenant may not be protected thereby.” 46 The court
may be flexible when crafting its remedy and each partition or sale is handled on a case-by-case
basis. 47 The decree on a proceeding for equitable partition will cause title to be conveyed; no
deed or other conveyance document is required. 48 This decree should be recorded in the land
records in the county in which the property is located to assure clear title and for the reference of
future landowners, title examiners, and attorneys.

43
Burnham v. Lynn, 219 S.E. 2d 111 (Ga. 1975).
44
Roberts v. Burnett, 164 Ga. 64, 137 S.E. 773 (Ga. 1927).
45
Cock v. Calloway, 141 Ga. 774, 82 S.E. 286 (Ga. 1914).
46
O.C.G.A. § 44-6-141 (2009).
47
Chaney v. Upchurch, 603 S.E. 2d 255, 257 (Ga. 2004).
48
O.C.G.A. § 44-6-142 (2009).

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 EXHIBIT 1: SAMPLE NOTICE OF APPLICATION
Georgia, ____________ County

To ____________(set out the names of the other partitioners):

You are hereby notified that I shall apply to the Superior Court to be held in and for said
county, on the ____________ Monday in ____________ next, for the appointment of
commissioners to divide (describe the land to be divided), in said county, in which you and I
have a common interest.

This _________ day of _____________________, 20_________.

Georgia Appleseed ■ Heir Property in Georgia Attorney Training Manual

 EXHIBIT 2: SAMPLE COMPLAINT FOR PARTITION IN KIND
IN THE SUPERIOR COURT OF ____________ COUNTY
STATE OF GEORGIA
____________, CIVIL ACTION
Plaintiff NO. ____________
v.
____________,
Defendant

COMPLAINT FOR STATUTORY PARTITION

Plaintiff files this Complaint for Statutory Partition and shows the following:
1.
The property, which is the subject matter of this action, is situated in ____________ County,
Georgia, and is more particularly described in Exhibit A attached hereto.
2.
Defendants are residents of ____________ County, Georgia, and are subject to the jurisdiction of
this Court.
3.
Plaintiff and defendants are common owners of said property, by virtue of ____________.
4.
The share and interest of plaintiff in said property is ____________.
5.
The share and interest of each defendant in said property is as follows: ____________.
6.
Plaintiff is entitled to have his title examined and to have said land partitioned between himself
and defendants, and the following documents of title are attached hereto as Exhibits
____________ and ____________.
7.
Attached hereto as Exhibit ____________ is 20 days' notice of intention to make application for
writ of partition as required by law.

[Signature Page Follows]

Georgia Appleseed ■ Heir Property in Georgia Attorney Training Manual

WHEREFORE, plaintiff demands a writ of partition directed to five freeholders of
____________ County, Georgia, and that they execute and return the writ as provided by law.

___________________
Attorney for Plaintiff

___________________
State Bar No.

___________________
Address

___________________
Telephone Number

Georgia Appleseed ■ Heir Property in Georgia Attorney Training Manual

 EXHIBIT 3: SAMPLE NOTICE OF WRIT

Georgia, ____________ County

To ____________(set out the names of all of the common owners):

You are hereby notified that by virtue of a writ of partition issued from the Superior Court of
said county we shall proceed on the ____________ day of ____________, 20___, to make
partition of a lot of land ____________(describe the land) in said county, between
yourselves, as common owners, or tenants in common of said lot of land.

Witness our hands and official signatures, this ____________ day of ____________, 20___.

___________________
___________________
___________________
___________________
___________________
Partitioners

Georgia Appleseed ■ Heir Property in Georgia Attorney Training Manual

 CHAPTER 8 GEORGIA TAX SALES: SALES OF REAL
PROPERTY FOR UNPAID AD VALOREM
PROPERTY TAXES

The following information is intended to provide an overview of the procedures

associated with sales of real property for unpaid ad valorem taxes in Georgia. This information
relates solely to tax sales for unpaid ad valorem real estate taxes, and not to sales to enforce
unpaid ad valorem personal property taxes or other liens against real property.

Section 1 Payment of Property Taxes

1.1 Taxing Authorities

(a) Authority. The authority to levy taxes rests with the State of Georgia; the county in
which the property is located; and the municipality in which the property is located.

(b) General Purpose. Property taxes may be levied to pay for services provided by the state
and local government, to finance public improvements, and for educational purposes.

1.2 Return of Property

(a) Who Should File. Residents and non-residents that own real property in Georgia

(b) When to File. Between January 1 and April 1 of each year. (Note the deadline to file in
Bibb, Butts, Chatham, Clarke, DeKalb, Gwinnett, Hall and Newton counties is March 1st.)

(c) Where to File. Tax Commissioner or Tax Receiver of the county in which the property is
located.

(d) What Information is Filed. Department of Revenue Form PT-50R – property location
description; owner’s contact information; description of property condition and physical
improvements.

(e) Effect of Failure to File. If a return is not filed, the previous year’s return is applied,
describing the same property at the same value with the same exemptions. If, for example, the
owner/taxpayer acquires additional property, or improvements are made to the property, the
previous year’s return would no longer be valid, and a new return must be filed. 1 A 10% penalty
will be assessed on property for which no return was filed, where the previous year’s return
would not apply.

1.3 Assessment of Property

(a) General Assessment Level. Property is assessed at 40% of its fair market value. 2

1
O.C.G.A. § 48-5-20 (2009).
2
O.C.G.A. § 48-5-7.

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(b) Preferential Assessment Programs.

(i) Agricultural property is assessed at 30% of the fair market value. 3

(ii) “Conservation Use Property” - agricultural land (subsistence or commercial),

timberland and environmentally sensitive areas assessed at its current use value, as opposed to
fair market value, which would consider other, more lucrative potential uses of the property. 4

(iii) Transitional single-family residential properties (located in areas that are

undergoing a change in use from single-family residential use to multi-family residential or non-
residential uses) – assessed at current use value. 5

(iv) Rehabilitated and landmark historic properties – temporary freeze on fair market
value for assessment purposes. 6

(v) Brownfield properties - temporary freeze on the fair market value for assessment
purposes. 7

1.4 Payment of Taxes

(a) When Lien Attaches. Taxes are charged against the property as of January 1. 8

(b) Who is Liable. Property taxes are charged against the owner of the property, life tenants
and those who “own and enjoy the property.” 9

(c) Notice of Taxes Due. Notices of taxes due and the subject property’s fair market and
assessed values are sent to taxpayers. 10

(d) Deadline for Payment of Taxes; Interest and Penalties for Late Payments. For most
counties, taxes are due on December 20 of each year; however, this deadline may be earlier for
some counties. 11 After the tax payment deadline, interest is charged at the rate of 1% per
month. 12 Depending upon the county, a penalty of as much as 10% is imposed on unpaid
taxes. 13 Specific information about the payment of taxes for a particular county, including the
deadline and whether taxes are paid in installments, may be found at the following website:
https://etax.dor.ga.gov/PTD/county/index.aspx.

3
Id. § 7(b).
4
Id. § 7(c)(2). see id. § 7.4 for “conservation use property” qualifications.
5
Id. § 7(c)(3); see id. § 48-5-7.4 for qualifications.
6
O.C.G.A. §§ 48-5-2(c) -(d), 7(c), 7(c)(1).
7
O.C.G.A.§§ 48-5-2(e), 48-5-7(c)(4).
8
O.C.G.A. § 48-5-9.
9
Id.
10
O.C.G.A.§ 48-5-7(e).
11
O.C.G.A. § 48-5-24.
12
O.C.G.A.§ 48-2-40.
13
O.C.G.A. § 48-5-24.

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Section 2 Tax Sales
Georgia law provides two procedures for the sale of property that is the subject of
delinquent property taxes - judicial and non-judicial tax sales. Under both proceedings, the
sheriff sells the property and the proceeds of the sale satisfy the outstanding amounts due.

Until 2002, Georgia law provided a third remedy for collecting delinquent property taxes.
Instead of selling the property itself, counties could sell tax liens to private investors, who, in
turn, could seek to enforce the lien using the non-judicial tax sales procedures. Although
counties no longer sell tax liens to private parties, some transferred liens remain outstanding.
These dormant tax liens will continue to accrue interest and penalties, perhaps for years, until
such time as the lien-holder initiates non-judicial tax sale proceedings to enforce the lien.

2.1 Non-Judicial Tax Sales (Tax Executions) 14

(a) Notice of Delinquency. 15 Prior to issuance of a writ of execution, the tax collector or tax
commissioner must issue written notice to the taxpayer “as soon as” the tax due date has passed,
notifying the taxpayer that the taxes have not been paid and that an execution will be issued. 16
The writ of execution may not be issued until 30 days after this notice is provided. 17

(b) Issuance of Writ of Execution. Thirty days after issuance of the notice described above,
the tax commissioner or tax collector may issue a writ of execution to the county sheriff. A writ
of execution is a formal directive ordering the sheriff to sell the property at auction.

(c) Affidavit of Illegality. 18 Once the writ of execution is issued, the taxpayer may contest
whether the taxes are actually due by filing an affidavit of illegality with the county sheriff. The
affidavit is then forwarded to the local superior court for a judicial determination of whether the
tax is due. Note that a bond securing the amount that would be charged to the taxpayer in the
event of an adverse judgment must accompany the affidavit.

(d) Notice of Sale. Ten days before the sale, written notice must be sent to the defendant
under the tax execution. 19 In cases of multiple owners, or where property is transferred after
January 1, the defendant under the tax execution may not necessarily be the owner of the
property. Twenty days before the sale, written notice must be sent to the property owner. 20
Notice of the sale must be published once a week for 4 weeks. 21 Notice must be published in the
newspaper in which sheriff’s sales are advertised in the applicable county. Qualifications for
official newspapers are set forth in Section 9-13-142 of the Georgia Code.

14
O.C.G.A. §§ 48-4-1-7
15
O.C.G.A. § 48-3-3.
16
Id. § 3(c).
17
Id. § 3(b).
18
O.C.G.A. § 48-3-1.
19
O.C.G.A. § 48-4-1.
20
O.C.G.A. §48-3-9.
21
O.C.G.A. §§ 9-13-140-141. and O.C.G.A. § 48-4-2.

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(e) Statute of Limitations. Executions expire 7 years from the date of issue. 22 This 7-year
period may be renewed by the entry of “nulla bona” by the levying officer, and the recording (or
re-recording) of the tax execution. Note, however, that it is not clear that the expiration of an
execution discharges the underlying obligation to pay property taxes. Rather, the expiration of
an execution may simply require the tax commissioner to repeat the process for issuing a tax
execution, and the property remains subject to a lien for unpaid property taxes. 23

(f) Excess Amounts. Within 30 days after the sale, written notice must be provided to
owners (and other persons with a recorded security or equity interest in the property) of any
excess funds. 24 Claimants then have 5 years from the date of the tax sale to collect the excess
funds. 25 After the 5-year period has elapsed, the unclaimed excess funds are paid to the
Department of Revenue, and may only be released by a court order from an interpleader action
filed by the claimant. 26

In the case of a sale of property for which no return has been filed, excess taxes are paid
to the county, and must be claimed within 4 years of the date of sale. 27

(g) Redemption. 28

(i) Who may redeem: The owner, or any person having any right, title, interest in or
lien upon the property. 29

(ii) Redemption period: Twelve months after the date of sale; after the initial 12-
month period, the property may be redeemed until the tax purchaser issues a notice of
foreclosure of the right of redemption or, if no notice is issued, until the tax deed ripens by
prescription (discussed below). 30

(iii) Cost to Redeem: The total of (a) the amount paid for the property at the tax sale,
plus (b) any taxes paid after the tax sale, plus (c) any special assessments, plus (d) a premium of
20% of the redemption cost for the first year and 10% for each year thereafter, plus (e) if the cost
to redeem is not paid until 30 days after the notice of foreclosure of redemption rights is given,
the sheriff’s cost in connection with serving the notice and the cost of publication of the notice, if
any. 31

(iv) Effect of Redemption: Within 7 days of payment of the redemption cost, the tax
purchaser must execute a quitclaim deed to the defendant named in the tax execution, and title is
restored to the tax execution defendant, subject to all liens existing at the time of the sale. 32 The

22
O.C.G.A. § 48-3-21.
23
O.C.G.A. § 48-5-28.
24
O.C.G.A. § 48-4-5(a).
25
Id. § 5(c).
26
Id.
27
O.C.G.A. § 48-4-2.
28
O.C.G.A. §§ 48-4-40-48.
29
Id. § 40.
30
Id.
31
Id. § 48.
32
Id. §§ 43-44.

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tax purchaser is responsible for preparing and recording the deed, and returning the recorded
deed to the redeemer. 33

(h) Foreclosure of Redemption Rights.

(i) Ripening by Prescription: If no notice of foreclosure of redemption rights,

(discussed below) is issued, the tax deed may “ripen by prescription,” thereby foreclosing the
right to redeem. If the defendant named in the execution suffered from a legal disability, the
prescriptive period begins when the disabilities are removed or abated. 34

(1) Tax deeds executed on or after July 1, 1996: 4 years from the date the deed is
recorded.

(2) Tax deeds executed on or after July 1, 1989, but before July 1, 1996: 4 years
from the date the deed is executed.

(3) Tax deeds executed prior to July 1, 1989: 7 years from the date the deed is
executed.

(ii) Notice of Foreclosure of Redemption Rights: Twelve months following the date
of the tax sale, the tax purchaser may forever terminate the right to redeem the property by
providing notice in accordance with Sections 48-4-45 and 48-4-46 of the Georgia Code.

Written notice must be provided to the defendant under the execution, any occupant of
the property, all persons having any recorded right, title, interest in or lien upon the property, and
heirs of any deceased owner of the land. Notice to county residents must be made by personal
service, by depositing notice with the sheriff at least 45 days prior to the redemption deadline.
Notice to non-residents must be sent by registered or certified mail, or by statutory overnight
courier. Any person required to be notified may waive service of notice in writing. Notice must
also be published once a week for 4 consecutive weeks in the 6-month period prior to the week
of the redemption deadline in the newspaper in which the sheriff’s advertisements for the county
are published.

(iii) Effect of Notice of Foreclosure on Actions to Cancel the Tax Deed: Once a
Notice of Foreclosure of Redemption Rights is issued, no action to cancel or set aside a tax deed
may be filed or maintained until the plaintiff tenders the full redemption amount, unless it
“clearly appears” that the underlying tax supporting the execution was not due at the time of the
sale, or service or notice were not given in accordance with Sections 48-4-40 through 48-4-48 of
the Georgia Code. 35

33
Id. § 44.
34
Id. § 48.
35
Id. § 47.

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 2.2 Judicial Tax Sales (Ad Valorem Tax Foreclosures) 36

The judicial tax sale process may be used by either the county or, with respect to
municipal taxes or by agreement with the county, the municipality. 37 The authority seeking to
use this process must first adopt an ordinance or resolution implementing the statutory process. 38
An ad valorem tax foreclosure may not be initiated until 12 months after the date on which the
taxes become delinquent. 39

The process is initiated by the filing of an in rem petition in the superior court of the
county in which the property is located. 40 The petition must conform to the form set forth in
Section 48-4-78(g), and contain the substantive information set forth in Section 48-4-78(c). The
petitioner must send copies of the petition (a) by certified mail or statutory overnight courier to
all “interested parties whose identities and addresses are reasonably ascertainable” and (b) by
first class mail to the property address to the attention of the occupants. A copy of the petition
shall also be posted on the property. 41 Within 30 days of filing the petition, notice must be
published on two separate dates in the “official organ” of the county in which the property is
located. 42 Simultaneously with the filing of the petition, the petitioner shall also file a notice of
lis pendens. 43

At least 30 days following the filing of the petition, a hearing will be held at which any
interested party shall have the right to be heard and to contest the delinquency of the taxes or the
adequacy of the proceedings. 44 If the court finds in favor of the petitioner, the court will issue
an order providing that the property be sold free of all liens, claims and encumbrances, other
than (a) rights of redemption under federal law; (b) superior Georgia governmental tax liens
(superior to those of the petitioner); (c) easements and rights of way of holders who are not
interested parties; and (d) real covenants filed of record as of the date the petition is filed. 45
Any interested party may redeem the property at any time before the court-ordered sale.

Once the sale is completed, the owner (owner of record at the time the petition is filed,
together with any successors-in-interest by death) may redeem the property within 60 days
following the sale. Completion of the court-ordered sale (and, with respect to the owner,
expiration of the aforementioned 60-day period) forecloses the right to redeem the property
(except as noted in Section 48-4-79 with respect to redemption of federal liens). Upon payment
of the redemption amount, the proceedings shall be dismissed. If an interested party that is not
the owner makes a payment, then the party making such payment possesses a lien on the
property of equal priority as the delinquent taxes, which may be enforced as any lien under
existing law (e.g., by the tax execution procedures described above, but not through the judicial
tax proceedings). Following the judicial hearing and court order authorizing sale of the
36
O.C.G.A. §§ 48-4-75-81.
37
Id. § 76.
38
Id.
39
Id. § 78.
40
Id.
41
Id. § 78(d).
42
See id. § 78(f) for the form and substance of the notice.
43
Id. § 78(e).
44
Id. § 79.
45
Id.

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 property, notice of the sale shall be advertised, and the sale shall be conducted, in accordance
with the requirements for sheriff’s sales. 46 The sale cannot occur earlier than 45 days following
issuance of the court order. 47 The minimum bid price must be the redemption amount. If the
sale price exceeds the redemption amount, the excess amount shall be deposited with the court
and distributed to the interested parties and the owner in the order of their respective interests. 48

46
Id. § 48-4-80; see O.C.G.A. § 9-13-160-178 for conducting sheriff’s sales; see O.C.G.A. § 9-13-140-142 for
advertising sheriff’s sales.
47
Id. § 80
48
O.C.G.A. § 48-8-8

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Chapter 8 Page 7
 CHAPTER 9 POWERS OF ATTORNEY

A power of attorney can be used in the state of Georgia to permit a third party to act on
behalf of another party. The party that is appointed as the attorney-in-fact by the power of
attorney: (i) becomes an agent of the principal, (ii) has a fiduciary duty to the principal, (iii) is
prohibited from taking any action that is adverse to the interest of the principal, (iv) cannot place
him or herself in a position where their duty or interest conflicts with that of the principal, and
(v) cannot make a secret profit as a result of the agency. 1

Generally, powers of attorney are construed strictly in accordance with the written
instrument that creates the agency and are not interpreted to increase the attorney-in-fact’s
powers beyond those that are set forth in the document (although the attorney-in-fact will be
permitted to take actions that are necessary and customary to accomplish the actions that are
specifically permitted). 2

Section 1 Conditional Power of Attorney

Effective as of July 1, 1993, the Georgia legislature created a conditional power of
attorney, which is a written agreement that becomes effective on a date in the future or upon the
occurrence of an event or satisfaction of a contingency (such as the incapacity of the principal). 3
This type of power of attorney becomes effective once the event or condition has occurred
(which is determined by the person or persons designated in the power of attorney to make such
determination) and a written declaration is made that states that the event or condition has
occurred. Once the written declaration is made, anyone can take actions in reliance on the
written declaration and will not be liable to the principal, whether or not the event or condition
has actually occurred. 4

Section 2 Financial Power of Attorney

Effective as of July 1, 1995, the Georgia legislature created a financial power of attorney
that can be used to appoint an agent to handle the principal’s financial affairs. This can be a
broad, general power of attorney, or it may be limited by the principal, but cannot be used to
authorize the agent to make medical decisions for the principal. 5 The statutory form of financial
power of attorney is attached, but is not the only way a financial power of attorney can be
created. 6 If the statutory form of power of attorney is used, the statute provides that the principal
should write his or her initials at the end of each paragraph that is intended to be included.
Paragraphs that are not intended to be incorporated into the power of attorney can be crossed out
and initialed by the principal or not included in the power of attorney at all.

1
Ga. Jur. §15:1.
2
Ga. Jur. §15:2.
3
O.C.G.A. §10-6-6(a) (2009).
4
Ga. Jur. §15:3.
5
O.C.G.A. §10-6-141.
6
O.C.G.A. §10-6-140.

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Chapter 9 Page 1
 Two adults must witness a financial power of attorney, and at least one of the witnesses
cannot be the principal’s spouse or blood relative. A financial power of attorney does not need
to be notarized; provided, however, that if the power of attorney is intended to be used in
connection with real estate transactions, a notary is required. 7

Section 3 Sample Forms

Other powers of attorney can be specific (permitting the attorney-in-fact to execute
documents related to a purchase or sale) or general (permitting the attorney-in-fact to take any
and all actions that the principal could take if the principal was present). Other than the financial
power of attorney, there are no statutory forms that are required to create a power of attorney, but
an example Statutory Form of Financial Powers of Attorney (Exhibit 1) is attached to this
chapter for reference. This exhibit can be modified to reflect any subject that the principal
desires.

Section 4 Revocation or Termination

A power of attorney may be revoked or terminated in accordance with the same rules
that apply to revocation or termination of any agency relationship under Georgia law. Therefore,
a power of attorney will terminate upon: (a) revocation at the will of the principal (except to the
extent that the power of attorney is also coupled with an interest), (b) appointment of a new
attorney-in-fact, or (c) death of the principal or the attorney-in-fact. 8 Notwithstanding the
foregoing, a power of attorney may not be revoked due to the principal’s death if: (1) the power
of attorney is also coupled with an interest, (2) the principal is a member of the armed services,
(3) the principal is serving as a merchant seaman outside of the United States, or (4) the principal
is serving the government of the United States in a location outside of the United States in an
activity pertaining to a war in which the United States is then engaged. In the case of (2), (3) or
(4) above, the power of attorney is not terminated if the attorney-in-fact acts in good faith
reliance on the power of attorney and does not have actual knowledge of the principal’s death.9
Powers of attorney are not terminated by the incompetency of the principal, unless the written
instrument expressly provides otherwise. Instead, the power of attorney remains in effect until a
guardian or receiver is appointed for the principal’s benefit or until a judicial proceeding
terminates the power of attorney. 10

7
§ 141.
8
O.C.G.A. §10-6-33.
9
O.C.G.A. §10-6-35.
10
O.C.G.A. §10-6-36.

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Chapter 9 Page 2
 EXHIBIT 1: STATUTORY FORM OF FINANCIAL
POWERS OF ATTORNEY 11
FINANCIAL POWERS OF ATTORNEY

County of _______________________________

State of Georgia

I, _______________________________, (hereinafter "Principal"), a resident of _____________

County, Georgia, do hereby constitute and appoint _________________________ my true and
lawful attorney-in-fact (hereinafter "Agent") for me and give such person the power(s) specified
below to act in my name, place, and stead in any way which I, myself, could do if I were
personally present with respect to the following matters:

(Directions: To give the Agent the powers described in paragraphs 1 through 13, place
your initials on the blank line at the end of each paragraph. If you DO NOT want to give a
power to the Agent, strike through the paragraph or a line within the paragraph and place
your initials beside the stricken paragraph or stricken line. The powers described in any
paragraph not initialed or which has been struck through will not be conveyed to the
Agent. Both the Principal and the Agent must sign their full names at the end of the last
paragraph.)

1. Bank and Credit Union Transactions: To make, receive, sign, endorse, execute, acknowledge,
deliver, and possess checks, drafts, bills of exchange, letters of credit, notes, stock certificates,
withdrawal receipts and deposit instruments relating to accounts or deposits in, or certificates of
deposit of banks, savings and loans, credit unions, or other institutions or associations.
_____________

2. Payment Transactions: To pay all sums of money, at any time or times, that may hereafter be
owing by me upon any account, bill or exchange, check, draft, purchase, contract, note, or trade
acceptance made, executed, endorsed, accepted, and delivered by me or for me in my name, by
my Agent. _____________

Note: If you initial paragraph 3 or paragraph 4 below, a notarized signature will be

required on behalf of the Principal.

3. Real Property Transactions: To lease, sell, mortgage, purchase, exchange, and acquire, and to
agree, bargain, and contract for the lease, sale, purchase, exchange, and acquisition of, and to

11
O.C.G.A. §10-6-142

Georgia Appleseed ■ Heir Property in Georgia Attorney Training Manual

accept, take, receive, and possess any interest in real property whatsoever, on such terms and
conditions, and under such covenants, as my Agent shall deem proper; and to maintain, repair,
tear down, alter, rebuild, improve, manage, insure, move, rent, lease, sell, convey, subject to
liens, mortgages, and security deeds, and in any way or manner deal with all or any part of any
interest in real property whatsoever, including specifically, but without limitation, real property
lying and being situate in the State of Georgia, under such terms and conditions, and under such
covenants, as my Agent shall deem proper and may for all deferred payments accept purchase
money notes payable to me and secured by mortgages or deeds to secure debt, and may from
time to time collect and cancel any of said notes, mortgages, security interests, or deeds to secure
debt. _____________

4. Personal Property Transactions: To lease, sell, mortgage, purchase, exchange, and acquire, and
to contract for the lease, sale, purchase, exchange, and acquisition of, and to accept, take,
receive, and possess any personal property whatsoever, tangible or intangible, or interest thereto,
on such terms and conditions, and under such covenants, as my Agent shall deem proper; and to
maintain, repair, improve, manage, insure, rent, lease, sell, convey, subject to liens or mortgages,
or to take any other security interests in the property which are recognized under the Uniform
Commercial Code as adopted at that time under the laws of Georgia or any applicable state, or
otherwise hypothecate, and in any way deal with all or any part of any real or personal property
whatsoever, tangible or intangible, or any interest therein, that I own at the time of execution or
may thereafter acquire, under such terms and conditions, and under such covenants, as my Agent
shall deem proper. _____________

5. Stock and Bond Transactions: To purchase, sell, exchange, surrender, assign, redeem, vote at
any meeting, or otherwise transfer any and all shares of stock, bonds, or other securities in any
business, association, corporation, partnership, or other legal entity, whether private or public,
now or hereafter belonging to me. _____________

6. Safe Deposits: To have access at all times to any safe deposit box or vault to which I have
access. ________

7. Borrowing: To borrow such sums of money as my Agent may deem proper and execute
promissory notes, security deeds or agreements, financing statements, or other security
instruments in such form as the lender may request and renew said notes and security
instruments from time to time in whole or in part. _____________

8. Business Operating Transactions: To conduct, engage in, and otherwise transact the affairs of
any and all lawful business ventures of whatever nature or kind that I may now or hereafter be
involved in. _________

9. Insurance Transactions: To perform any act, power, duty, right, or obligation, in regard to any
contract of life, accident, health, disability, liability, or other type of insurance or any

Georgia Appleseed ■ Heir Property in Georgia Attorney Training Manual

combination of insurance; and to procure new or additional contracts of insurance for me and to
designate the beneficiary of same; provided, however, that my Agent cannot designate himself or
herself as beneficiary of any such insurance contracts. _____________

10. Disputes and Proceedings: To commence, prosecute, discontinue, or defend all actions or
other legal proceedings touching my property, real or personal, or any part thereof, or touching
any matter in which I or my property, real or personal, may be in any way concerned. To defend,
settle, adjust, make allowances, compound, submit to arbitration, and compromise all accounts,
reckonings, claims, and demands whatsoever that now are, or hereafter shall be, pending
between me and any person, firm, corporation, or other legal entity, in such manner and in all
respects as my Agent shall deem proper. _____________

11. Hiring Representatives: To hire accountants, attorneys at law, consultants, clerks, physicians,
nurses, agents, servants, workmen, and others and to remove them, and to appoint others in their
place, and to pay and allow the persons so employed such salaries, wages, or other remuneration,
as my Agent shall deem proper. _____________

12. Tax, Social Security, and Unemployment: To prepare, to make elections, to execute and file
all tax, social security, unemployment insurance, and informational returns required by the laws
of the United States, or of any state or subdivision, or of any foreign government; to prepare, to
execute and file all other instruments which the Agent thinks is desirable or necessary for
safeguarding of me against excess or illegal taxation or against penalties imposed for claimed
violation of any law or other governmental regulation; and to pay, to compromise, or to contest
or to apply for refunds in connection with any taxes or assessments for which I may be liable.
___________

13. Broad Powers: Without, in any way, limiting the foregoing, generally to perform any other
act, deed, matter, or thing whatsoever, that should be done, executed, or performed, including,
but not limited to, powers conferred by Code Section 53-12-232 of the Official Code of Georgia
Annotated, or that in the opinion of my Agent, should be done, executed, or performed, for my
benefit or the benefit of my property, real or personal, and in my name of every nature and kind
whatsoever, as fully and effectually as I could do if personally present. _____________.

14. Effective Date: This document will become effective upon the date of the Principal's
signature unless the Principal indicates that it should become effective at a later date by
completing the following, which is optional. The powers conveyed in this document shall not
become effective until the following time or upon the occurrence of the following event or
contingency: __________________________________.

Note: The Principal may choose to designate one or more persons to determine conclusively
that the above-specified event or contingency has occurred. Such person or persons must
make a written declaration under penalty of false swearing that such event or contingency
has occurred in order to make this document effective. Completion of this provision is
optional.

Georgia Appleseed ■ Heir Property in Georgia Attorney Training Manual

The following person or persons are designated to determine conclusively that the above-
specified event or contingency has occurred:
___________________________________________________________.

Signed: ________________________________
Principal

Signed: ________________________________
Agent

It is my desire and intention that this power of attorney shall not be affected by my
subsequent disability, incapacity, or mental incompetence. Any and all acts done by the Agent
pursuant to the powers conveyed herein during any period of my disability or incapacity shall
have the same force and effect as if I were competent and not disabled.

I may, at any time, revoke this power of attorney, but it shall be deemed to be in full force
and effect as to all persons, institutions, and organizations which shall act in reliance thereon
prior to the receipt of written revocation thereof signed by me and prior to receipt of actual
notice of my death.

I do hereby ratify and confirm all acts whatsoever which my Agent shall do, or cause to
be done, in or about the premises, by virtue of this power of attorney.

All parties dealing in good faith with my Agent may fully rely upon the power of and
authority of my Agent to act for me on my behalf and in my name, and may accept and rely on
agreements and other instruments entered into or executed by the agent pursuant to this power of
attorney.

This instrument shall not be effective as a grant of powers to my Agent until my Agent
has executed the Acceptance of Appointment appearing at the end of this instrument. This
instrument shall remain effective until revocation by me or my death, whichever occurs first.

Compensation of Agent. (Directions: Initial the line opposite your choice.)

1. My Agent shall receive no compensation for services rendered. ______
2. My Agent shall receive reasonable compensation for services rendered. ___________
3. My Agent shall receive $ _______ for services rendered. ________

[Signature Page Follows]

Georgia Appleseed ■ Heir Property in Georgia Attorney Training Manual

 IN WITNESS WHEREOF, I have hereunto set my hand and seal on this ____ day of
_______________, 20____.

_________________________________
Principal
WITNESSES

_________________________________

_________________________________
Signature and Address

_________________________________

_________________________________
Signature and Address

Note: A notarized signature is not required unless you have initialed paragraph 3 or 4
regarding property transactions.

I, ________________________, a Notary Public, do hereby certify that___________________

_________________________ personally appeared before me this date and acknowledged the
due execution of the foregoing Power of Attorney.

_________________________________
Notary Public
State of Georgia

County of _________________________

(Notarial Seal)

Georgia Appleseed ■ Heir Property in Georgia Attorney Training Manual

 EXHIBIT 2: ACCEPTANCE OF APPOINTMENT
I, ____________________________ (print name), have read the foregoing Power of Attorney
and am the person identified therein as Agent for ___________________________ (name of
grantor of power of attorney), the Principal named therein. I hereby acknowledge the following:

I owe a duty of loyalty and good faith to the Principal, and must use the powers granted to me
only for the benefit of the Principal.
I must keep the Principal's funds and other assets separate and apart from my funds and other
assets and titled in the name of the Principal. I must not transfer title to any of the Principal's
funds or other assets into my name alone. My name must not be added to the title of any funds or
other assets of the Principal, unless I am specifically designated as Agent for the Principal in the
title.

I must protect and conserve, and exercise prudence and caution in my dealings with, the
Principal's funds and other assets.

I must keep a full and accurate record of my acts, receipts, and disbursements on behalf of the
Principal, and be ready to account to the Principal for such acts, receipts, and disbursements at
all times. I must provide an annual accounting to the Principal of my acts, receipts, and
disbursements, and must furnish an accounting of such acts, receipts, and disbursements to the
personal representative of the Principal's estate within 90 days after the date of death of the
Principal.

I have read the Compensation of Agent paragraph in the Power of Attorney and agree to abide by
it.

I acknowledge my authority to act on behalf of the Principal ceases at the death of the Principal.

I hereby accept the foregoing appointment as Agent for the Principal with full knowledge of the
responsibilities imposed on me, and I will faithfully carry out my duties to the best of my ability.
Dated: _______________, 20____.
(Signature) ______________________________
(Address) _______________________________

Note: A notarized signature is not required unless the Principal initialed paragraph 3 or
paragraph 4 regarding property transactions.

I, _________________________, a Notary Public, do hereby certify that ___________________

__________________________ personally appeared before me this date and acknowledge the
due execution of the foregoing Acceptance of Appointment.

______________________________
Notary Public
(Notarial Seal)

Georgia Appleseed ■ Heir Property in Georgia Attorney Training Manual

 EXHIBIT 3: FORM OF POWERS OF ATTORNEY
STATE OF GEORGIA

COUNTY OF __________

SPECIAL POWER OF ATTORNEY

KNOW ALL BY THESE PRESENTS, that I, _______________________, do hereby

make, constitute and appoint __________________________ as my true and lawful attorney-in-
fact with full power and authority to do and perform all of the following things and to exercise
all of the following powers with respect to the following described transaction for me and in my
name, place and stead:

To perform all acts necessary, appropriate and incidental in connection with the
negotiation, consummation and closing of the purchase of that certain real property located in
Land Lot _____, ____ District, ___________ County, Georgia, with an address of
___________________________, and being more particularly described on Exhibit "A" attached
hereto and by this reference made a part hereof, upon such terms and conditions as my attorney-
in-fact shall approve; in connection therewith and not by way of limitation, said attorney-in-fact
is hereby specifically authorized to execute and deliver all documents, contracts, agreements,
deeds, mortgages, security deeds, deeds to secure debt, deeds of trust, assignments, guarantees,
indemnities, promissory notes, affidavits, easements, subordination agreements, closing
statements and any and all such other instruments or documents or amendments thereto as said
attorney-in-fact may deem necessary, appropriate, advisable or incidental to the purchase of said
property and to deliver any and all consideration therefore.

I do hereby ratify and confirm all that my said attorney-in-fact shall do or cause to be
done by virtue hereof.

This Special Power of Attorney is a special power of attorney coupled with an interest
and is irrevocable and shall be effective from its execution until __________ ____, 20__, and
until such date all persons and entities may rely on this Special Power of Attorney as being in
full force and effect.

[Signature Page Follows]

Georgia Appleseed ■ Heir Property in Georgia Attorney Training Manual

 IN WITNESS WHEREOF, I have hereunto set my hand and seal this ____ day of
___________, 20___.

___________________________________

Printed name:________________________

Signed, sealed and delivered in the presence of:

_______________________

Unofficial Witness

________________________

Notary Public

My commission expires:

(Notarial Seal)

Georgia Appleseed ■ Heir Property in Georgia Attorney Training Manual

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