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Heirs

Property
in
Georgia
Attorney Training Manual
(2016 Edition)
2016 Georgia Heirs Property Law Center, A Project of 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.
Table of Contents

INTRODUCTION............................................................................................................................i
What is Heirs Property?........................................................................................................... i
ACKNOWLEDGEMENTS........................................................................................................... iv
CHAPTER 1 EFFECTIVE CLIENT REPRESENTATION...........................................................1
SECTION 1 WHO IS YOUR CLIENT?.............................................................................................1
SECTION 2 WHAT IS YOUR CLIENTS GOAL?............................................................................. 2
SECTION 3 EXAMPLES OF ETHICAL SITUATIONS.........................................................................4
EXHIBIT 1: HEIRS PROPERTY INTAKE FORM.............................................................................. 6
EXHIBIT 2: RISK DISCLOSURE LETTER...................................................................................... 16
CHAPTER 2 TITLE INSURANCE.............................................................................................. 19
SECTION 1 ASCERTAINING THE STATUS OF TITLE....................................................................19
SECTION 2 POTENTIAL TITLE ISSUES AND RESOLUTIONS......................................................... 21
SECTION 3 SOURCES FOR FURTHER ASSISTANCE..................................................................... 25
CHAPTER 3 CLEARING TITLE.................................................................................................26
SECTION 1 DETERMINE HOW THE PROPERTY IS TITLED........................................................... 26
SECTION 2 OBTAIN THE CLIENTS FAMILY TREE..................................................................... 27
SECTION 3 RETRACE THE CHAIN OF TITLE USING PROBATE RECORDS.................................... 27
SECTION 4 WHAT IF IT IS NOT THAT SIMPLE?..........................................................................28
EXHIBIT 1: MAP OF GEORGIA COUNTIES.................................................................................. 29
EXHIBIT 2: LAND RECORD INFORMATION FOR GEORGIA COUNTIES.................................. 30
CHAPTER 4 INTESTACY...........................................................................................................38
SECTION 1 INTESTATE HEIRS................................................................................................... 38
SECTION 2 PROBATE ADMINISTRATION....................................................................................39
SECTION 3 ADMINISTRATION OF DECEDENTS PROPERTY........................................................40
SECTION 4 CONCLUSION.......................................................................................................... 42
EXHIBIT 1: HEIRS DETERMINATION WORKSHEET................................................................... 45
EXHIBIT 2: PROBATE / ADMINISTRATION PROCESSES............................................................ 53
CHAPTER 5 QUIET TITLE.........................................................................................................55
SECTION 1 CONSIDERATIONS WHEN COMPETING INTERESTS EXIST IN THE PROPERTY..............55
EXHIBIT 1: QUITCLAIM DEED..................................................................................................... 59
EXHIBIT 2: PETITION TO QUIET TITLE....................................................................................... 61
CHAPTER 6 ADVERSE POSSESSION AND OUSTER IN GEORGIA....................................68
SECTION 1 ADVERSE POSSESSION...............................................................................................68
SECTION 2 OUSTER.....................................................................................................................71
SECTION 3 ABANDONMENT........................................................................................................ 71
CHAPTER 7 PARTITION............................................................................................................72
SECTION 1 APPLYING FOR STATUTORY PARTITION.................................................................. 73
SECTION 2 APPLYING FOR EQUITABLE PARTITION................................................................... 74
SECTION 3 ADJUDICATION UNDER THE ACT............................................................................. 75
SECTION 4 STATUTORY PARTITIONS NOT ADJUDICATED UNDER THE ACT................................81
SECTION 5 EQUITABLE PARTITIONS NOT ADJUDICATED UNDER THE ACT................................ 85
EXHIBIT 1: SAMPLE NOTICE OF APPLICATION........................................................................ 86
EXHIBIT 2: SAMPLE COMPLAINT FOR PARTITION IN KIND.................................................... 87
EXHIBIT 3: SAMPLE NOTICE OF ELECTION.............................................................................. 90
EXHIBIT 4: SAMPLE NOTICE OF WRIT........................................................................................ 91
CHAPTER 8 GEORGIA TAX SALES: SALES OF REAL PROPERTY FOR UNPAID AD
VALOREM PROPERTY TAXES ............................................................................................... 92
SECTION 1 PAYMENT OF PROPERTY TAXES..............................................................................92
SECTION 2 TAX SALES............................................................................................................. 93
CHAPTER 9 POWERS OF ATTORNEY.................................................................................... 99
SECTION 1 CONDITIONAL POWER OF ATTORNEY..................................................................... 99
SECTION 2 FINANCIAL POWER OF ATTORNEY..........................................................................99
SECTION 3 SAMPLE FORMS.....................................................................................................100
SECTION 4 REVOCATION OR TERMINATION............................................................................ 100
EXHIBIT 1: STATUTORY FORM OF FINANCIAL POWERS OF ATTORNEY11..........................101
EXHIBIT 2: ACCEPTANCE OF APPOINTMENT......................................................................... 106
EXHIBIT 3: FORM OF POWERS OF ATTORNEY........................................................................ 108
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
Heirs Property Project to Georgia.

The Georgia Heirs Property Law Center, Inc. (the Center) was founded in 2015, and is
the direct result of the work of Georgia Appleseed. Georgia Appleseed, founded in 2005, is a
non-partisan not-for-profit dedicated to law that serves the public interest. Georgia Appleseeds
Young Professionals Council (YPC) adopted the Heirs Property Project in 2008, the same year
Crystal Chastain Baker was awarded a Cousins Public Interest Fellowship at the University of
Georgia Law School and became the first project director of Heirs Property at Georgia
Appleseed. From there, it has grown into a statewide collaborative effort to improve justice for
owners of heirs property and the development of the Georgia Heirs Property Law Center.

The mission of the Georgia Heirs Property Law Center is threefold:

a. To provide legal and technical assistance and economic opportunities to for those
impacted by heirs property;

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

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


systemic level responses.

What is Heirs Property?


Heirs property is the phrase used to describe real property passed to multiple heirs
resulting in co-tenant ownership of the inherited real property. On April 16, 2012, the Georgia
General Assembly enacted the Uniform Partition of Heirs Property Act1 which was signed into
law by Governor Nathan Deal. As a result of the Acts passage, for the first time in Georgias
history, the Georgia Code defines the term heirs property. The Act defines heirs property as
property that (1) has no agreement in a record binding all the co-tenants, which governs the
partition of the property; (2) one or more of the co-tenants acquired title from a relative, whether
living or deceased; and (3) any of the following applies:
a. Twenty percent (20%) or more of the interests are held by co-tenants who are
relatives;
b. Twenty percent (20%) or more of the interests are held by an individual who
acquired title from a relative, whether living or deceased; or
c. Twenty percent (20%) or more of the co-tenants are relatives.2

This definition is consistent with the historical definition of heirs property and provides

1
O.C.G.A. 44-6-180 (2015).
2
O.C.G.A. 44-6-180(5) (2015).

Georgia Appleseed Heirs Property in Georgia Attorney Training Manual Page i


significant protections, particularly in partition actions, to heirs property owners.

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 use of the property for economic gain and security for the family, 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. Heirs property often has social,
cultural and economic impact on the surrounding community.
Making a Difference for Heirs Property Clients
Several concurrent avenues are underway to address and remedy the issues that confront
heirs property owners in Georgia. The YPCs extensive tax database research has confirmed that
the problem of heirs 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 2016 edition of the Heirs Property in Georgia Attorney Training Manual, first
published in 2010 with supplements in 2012 and 2013, is intended to guide non- real estate
attorneys through an understanding of the laws of intestacy and risks associated with heirs
property. It provides tools to help pro bono attorneys navigate through the process of perfecting
title and includes an important section on professionalism and ethics that covers issues that heirs
property may generate. A series of scenarios featuring fictitious heirs 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. The forms included are for illustrative purposes only; users of the
manual must seek current forms from the appropriate court or agency, where applicable.

Supplemental tools available for heirs property clients and attorneys include (1) the user
friendly, information manual, Heirs Property in Georgia, that covers such topics as property
basics, steps to protect ones land, and the importance of a will, and (2) Rooted and Grounded:
A Georgia Legal Handbook for Small Farmers and Their Land, to help farmers make informed
decisions to protect assets for future generations. These documents can be downloaded at
www.GaAppleseed.org.

Prior to the creation of the Center, and in these initial formative years of the Center,
attorney volunteers have generously provided professional services pro bono to help
disadvantaged heirs property owners to protect their property interests and to enhance their
economic security. We extend our sincerest appreciation to our volunteer practitioners and to the
many legal volunteers who have helped to bring this Manual to fruition.
Acknowledgements
The Heirs 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 Heirs Property.

We would like to thank the following individuals and organizations for their participation and support of this
project over the life of this publication beginning with its first edition in 2010.

Georgia Heirs Property Law Center Staff (2016)


Skipper G. StipeMaas, J.D.
Director

Claude C. Davis, II
Staff Attorney

Veronica M. A. McClendon,
Staff Attorney

Georgia Heirs Property Law Center Board of Directors (2016)

Pearson Beardsley Patrise Perkins-Hooker


Beardsley, P.C. Fulton County Office of the County Attorney

Scott Bryant Leslie Secrest


Hutchinson, PLLC Retired real estate attorney
Stacy Funderburke Skipper G. StipeMaas
The Conservation Fund Georgia Heirs Property Law Center, Director

Sharon Hill
Georgia Appleseed, Executive Director

Collaborative Partners
UGA School of Law Public Interest Practicum (2010 edition)

Georgia Appleseed Center for Law and Justice

Alabama Appleseed (2010 edition)

Pro Bono Volunteers


Individual Volunteers (2010 edition)

Frank S. Alexander, Scott Bryant, Courtney Showell, Sr., and Lauren Zeldin

DLA Piper LLP (US) (2010 edition team) Ben Keiser


James JB Allen Jeremy Adam Kruger
Gillian M. Deutch Shawn Lanier
Mariah F. DiGrino Jarrod Matteson
Thomas M. Grace Shunta Vincent McBride
Brian M. Gordon
Cara J. Nelson Lawrence E. Uchill
Roberta (Bert) A. Ritvo Sarah Whitmars
Sutherland Asbill Brennan (2016 edition team)
John Fleming
Patrick Spook
Heather Rosser

Cover Photograph
Janice F. Dyer, Auburn University, Department of Agricultural Economics and Rural Sociology
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 clients legal rights and obligations and explains
their practical implications. As an advocate, a lawyer zealously asserts the clients 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 clients 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 heirs 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. A lawyer is
permitted to serve as in intermediary subject to applicable Georgia Rules of Profession Conduct
regarding conflicts of interest found in Rule 1.7 and 1.8. Because confusion can arise as to the
lawyers role when each party is not separately represented, as their lawyer you must make this
relationship clear and in writing.1
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
1
GEORGIA RULES OF PROFESSIONAL CONDUCT Rule (2015).
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 lawyers 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 lawyers 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 heirs 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 lawyers 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.

Section 2 What is Your Clients Goal?


Once you have established who the client is for the heirs 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 on the clients legal ability to remain on the
property, which is of utmost importance in the heirs 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 lawyers 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 clients 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 clients 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
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 lawyers
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
lawyers 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.
Josephs 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. Ritas 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
Georgias 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
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, she does not have the assets to buy them out,
and the court determines that a partition in kind would materially prejudice the property owners,
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
mothers 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. If the buyer has even a nominal
interest in the land, the buyer can demand a partition sale. If Joey does not have the requisite
funds to buyout the buyers interest, there is a possibility the court may order an open public sale
of the property. Though the Uniform Partition of Heirs Property Act remediates some risk
associated with partition sales, some risk still remains for the heirs property owner.

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 heirs 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.
EXHIBIT 1: HEIRS 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 clients 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 HEIRS PROPERTY LAW CENTER
CLIENT INTAKE FORM

Intake Date:

Please fill this form out with the client at your first meeting. If the client has brought in any
original documents, make copies and place them in the clients labeled folder, and ask the client
to place the originals in a safety deposit box or other safe location.

PART I: CLIENT INFORMATION


PLEASE PRINT:
Name: Date of Birth:
Age: SEX: Male Female

Address: County:
City: State: Zip:
Home Telephone: Other Telephone:
Email Address: Spouse:
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

PART II: GENERAL PROPERTY INFORMATION


1. Address of the property:

Zip code:
County:
2. Please attach a copy of a document stating the legal description of the property.
3. How long has the property been in the family?
4. How did the property come into the family?
PROPERTY CHARACTERISTICS
5. What is the size of the property?
Less than 10 acres 10-49 acres 50-99 acres
100-999 acres Over 1,000 acres
Does it include a house(s)?

6. Does the property have any special historical, cultural, or community significance?

7. Briefly describe your personal connection to this land as well as your familys connection to
the land:

8. Are there improvements on the property? If so, what are they?

9. Is there any known mining value associated with the property?

10. Are any mills or machinery erected on the property?

11. Briefly describe the immediate area surrounding the property (neighboring properties, uses,
etc.)

PART III: FINANCIAL INFORMATION


INCOME: Weekly Monthly Annually
Workers Compensation $ $
Child Support $ $
Alimony $ $
Other: $ $
TOTAL AMOUNT $ $

ASSET INFORMATION:
Provided: Yes No

Source Value Monthly Payment


Bonds
Business interests or inventory
Cash
Certificate of Deposits (CDs)
Checking
IRA or Money Markets
Non-homeplace real estate
Savings
Stocks
Vehicles (not used for transport)
Assets not included in total:
Vehicle #1 (used for transport)
Vehicle #2 (used for transport)
Other:
Other:
Other:
Other:

EXPENSES: (optional)
Source Monthly Payment Amount of Arrearage (if any)
Rent/Mortgage
Electric
Gas
Water
Phone
Childcare
Auto/transportation
Employment Related
Medical / Nursing Expenses
Age / Disability Expenses
Dependent Care
Paying Current Taxes
Property Taxes
Property Insurance
Total Expenses

PART IV: CLIENTS GOALS


9. What does the client want to do with this land?

Options to suggest:
Have title to the property consolidated into one persons name
Obtain insurable/marketable title
Other (please explain):

10. Do other family members agree with the client on this goal?
If so, who?

11. Is there a pending lawsuit or other legal action concerning part or all of this land?
If so, please describe:

12. Do any family members have an attorney concerning this land?


If so, please provide the name and address of the attorney(s):

13. How does the client plan to use the property in the future?

Sell Recreation
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):

14. 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 Farming
Other(s)

PART V: ADDITIONAL PROPERTY INFORMATION


TAXES
15. Name(s), address(s), phone number(s), and email(s) of person(s) listed on tax bill:

Who has paid the taxes on the property?

For how long?


Do you have receipts or other documents related to payment of taxes?
If so, what years:
What is the tax assessed or market determined value of the land and any establishments
on that land?
16. Have the property taxes been paid in a timely manner?
Have you received any communications/letters from the county tax collector?
17. What is your relationship to the person listed on the tax rolls as owner:
18. List the names of everyone using the property (i.e., for living, hunting, cutting trees,
farming):
What is their relationship to you?

Do they receive mail there?


TITLE/ESTATE ISSUES
19. Whose name is the title to the property now in?
How and when was the property acquired?
Do you know if the original owner ever transferred the property to anyone else?
20. If the property is part of an estate of a deceased parent or other relative:
Did the last owner leave a will?
Was the will officially handled in court?
Did the court order that the persons property go to certain people?
21. Please include the names of all people who have or may have an interest in the property as
far as you know. A family tree (including information like marriages, divorces, dates of
birth/death, contact information, relationship to record title holder, whether an estate is
opened for anyone who is deceased) is required. Please get as much information for each
person in the family tree. Do not forget to consider deceased heirs, divorces, children from
different marriages and adopted children, persons incarcerated, relatives in other states or
outside of the country, all spouses or children of the deceased, including grandchildren of any
deceased children, etc. See Resources for Creating Family Tree.
Can you tell me about [the last owners] 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 owners are accounted for (i.e., can be located) and how many are
unaccounted for (i.e., cant be located)?
22. Do you get along with other family members who you think also own this land? Yes? No?
Some?

Are you still in touch with any/all of these relatives?


Are there any major divisions in the family?
Does anyone currently claim to want to occupy/use the property?
Who has paid the property expenses over the last years (e.g., improvements,
maintenance)?
23. Is the property the registered homestead of any individual?
Does anyone get a tax break on the property, because it is his or her homestead?
Is any owner of this land over the age of 65, blind, or disabled?
24. Has the property been leased out to anyone? If so, please describe who is leasing
and who collects the money:

Has any timber been sold off the property?


Have you ever taken money to allow someone else to use the property?
If so, who?
25. Was the property purchased in the last 10 years? If so, please attach copies of
all sale documents.
26. Are there any known easements on the property (utility, cell phone tower, access, mining,
etc.)?

27. Are there any agreements (written or oral) among the owners of the property contemplating
the payment of taxes/expenses, propert subdivision process or any other issues?

LEGAL PROCESS
28. Are there any pending court cases?
29. Was property ever legally divided up, or subjected to any legal process?

30. Do you know whether anyone with legal interest to the land has a default on a payment
obligation that could implicate the land?
DISCUSSIONS AMONG FAMILY MEMBERS
31. Has any family member sold or tried to sell their share of the land?
32. Has any family member asked other family members to agree to sell or mortgage some of the
land?
33. Are there any disagreements among family members as to how to use the land or
profits/taxes?
34. Are there any disagreements among family members as to who is a legitimate owner of the
land?
35. Do any liens encumber the property (e.g., mortgages, tax liens, construction liens, etc.)?
If so, please list:

OUTSIDE OWNERS/USERS OF PROPERTY


36. Has any outsider asked family members to sell their share or threatened legal action?

37. 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 the outsider pay for use of the land (and if so, who is
collecting money)?

Is there a written agreement?


Did they just agree orally?
38. Are there any boundary disputes?

PART VI: DOCUMENTS


39. List the documents provided by the client.
DOCUMENTS THAT THE CLIENT SHOULD PROVIDE

HAVE NEED DOCUMENT


1. Last deed recorded
2. Tax bill and other tax records (e.g., statements, appraisals, receipts,
etc.)
3. Property 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 contracts or other written or oral agreements among other
family members related to the property
9. Any other agreements to use the property
10. Family records (e.g., bible, birth certificates, death certificates, etc.)
11. Death certificates of record title holder and deceased heirs of that
individual
12. Any other papers or family letters about this land
13. Land surveys
14. Any documents pertaining to a lawsuit or threat of a lawsuit with
respect to the property
15. Copy of any grant application submitted with respect to the
property

16. Copy of any materials submitted in connection with any grant


application submitted with respect to the property

Notes:

Person conducting intake:


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 heirs 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 Propertys 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 value because of the
forced timed conditions of the court sale where there are willing buyers, but court-
ordered sellers. In these instances heirs 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.
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 of
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]


ACKNOWLEDGED BY: ACKNOWLEDGED BY:

(Signature) (Signature)

(Print Name) (Print Name)

(Date) (Date)
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) obtain
financing, (ii) establish proof of residency for purposes of obtaining a drivers license or a
passport, (iii) obtain reconstruction aid from certain governmental programs, (iv) settle title
disputes, (v) lease the property and (vi) be 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 clients 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.

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 clients 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 clients property. Each of these situations may indicate a potential
encumbrance on the clients 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 clients 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 clients 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 clients 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 clients
property. A good survey will accurately show the location of any improvements on your clients
property, the boundary lines of your clients property, and the location of any easements of
record. If a survey is available, you should review it alongside 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 clients 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 surveyors certification contained on the survey may also
reveal other factual matters that may not otherwise be ascertainable. If no surveys are available
for your clients 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).

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
clients 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 clients
property that do not appear to be within the boundaries of your clients 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 clients ability to obtain insurable title. The following describes certain types of
encumbrances that would affect the clients 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 owners 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 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 clients 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 clients property. Once a release or quit
claim deed with the proper title references is recorded, the old security deed will no longer
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 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 clients
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 commissioners office and paying in full the taxes due (including any interest and penalties).

A statutory mechanics 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. Under Georgia law, an action to collect on a claim must be filed within 12
months of when the claim became due. If the client indicates that there has been no work done
to the property within the past 12 months, then an exception for any mechanics 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. If the person or entity claiming the lien does not file the statutory notice in
the deed records in a timely manner, the title insurance company should disregard the claim.

2.3 Heirs Property

Your client or a prior owner in your clients 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 decedents
death. Heirs 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 clients 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 clients chain of title as a result of the property passing to your client via intestate
succession, then a proper affidavit of descent should be executed and filed to evidence your
clients rights in the property as the heirs of the decedent. For more details on the proper form of
affidavit of descent refer to a title insurance company.

1
Note that certain states and certain title companies might have a strong preference for a judicial determination of
heirs 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 heirs is considered in many states to be a more
definitive determination.
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 clients property may impact your
clients 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 owners property. An adverse possession claim could
negatively impact your clients 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 clients 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 clients property should also be
obtained. If you believe that there is a legitimate potential adverse possession claim against your
clients 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 decedents 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 clients property. If a decedent in the
chain of title to your clients property died intestate, the decedents heirs may have filed an
Affidavit of Descent or completed a judicial heirs determination. Refer to the Intestacy Chapter
for more information about clearing title with respect to probate issues.

2.6 Discrepancies in the Legal Description/Scriveners 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 scriveners 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 scriveners errors include small typographical errors in the legal
description, a misspelling of a grantors 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
scriveners 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 scriveners errors since a new deed will be effective as of the new execution date. Note 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 scriveners 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 clients vesting deed, survey and/or title abstract matches
your clients expectations about the property your client believes he or she owns.

2.7 Lack of Access

A propertys 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 propertys driveway is located
completely within the perimeter of the propertys 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 clients
property. If this problem exists, you should have a title search done on the abutting landowners
property, to see whether the owner of your clients 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 clients 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 clients 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.

2.9 Encroachments/Disputes with Abutters

The clients property may have a building or other structure encroaching onto an
abutters property. Similarly, an abutter of the client may be encroaching onto the clients
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 clients
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 clients 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, Georgia Heirs
Property Law Center attorneys 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.
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 mothers death in
1985. The last deed to the property was recorded in 1950 and shows Johns 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
owner. Furthermore, many families do not probate an estate because they are unaware 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 tenants interest does not automatically pass to the survivor but instead
passes under the terms of the deceased tenants 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.
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 clients 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 Does 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 Johns family tree.

Section 2 Obtain the Clients Family Tree


You need the clients 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 clients ancestors and their
descendants. Some clients 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 persons 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, Georgias law of intestate succession determines
how a decedents assets will pass. Refer to the Intestacy Chapter, Section 1 for an explanation of
Georgias intestacy laws.

If there were no probate proceedings, you will need to file a petition for probate of the
owner of records 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 records 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 Does 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 Johns 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 Johns grandmother were
indeed initiated in Fulton County. The property passed to Johns mother who was an only child.
John Does mother had a will in which she bequeathed the property to him, but there were no
probate proceedings. You will need to file the mothers 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.

Initiate Probate Proceedings, If Necessary

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

Section 4 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
Does 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 Johnand 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.
EXHIBIT 1: MAP OF GEORGIA COUNTIES
EXHIBIT 2: LAND RECORD INFORMATION FOR GEORGIA COUNTIES

Appling County Bartow County Bryan County


Appling County Clerk Bartow County Clerk Bryan County Clerk
Court House Square 135 W Cherokee Ave, P.O. Box 757
Baxley, GA 31513-2028 Suite 251 Pembroke, GA 31321
Phone: (912) 367-8114 Cartersville, GA 30120 Phone: (912) 653-4681
Phone: (770) 387-5075
Atkinson County Bulloch County
Atkinson County Clerk Ben Hill County Bulloch County Clerk
P.O. Box 855 Ben Hill County Clerk 1 W Altman St
Pearson, GA 31642 P.O. Box 187 Statesboro, GA 30458
Phone: (912) 422-3552 Fitzgerald, GA 31750 Phone: (912) 764-5969
Phone: (229) 423-2317
Bacon County Burke County
Bacon County Clerk Berrien County Burke County Clerk
P.O. Box 146 Berrien County Clerk P.O. Box 89
Alma, GA 31510 P.O. Box 446 Waynesboro, GA 30830
Phone: (912) 632-7661 Nashville, GA 31639 Phone: (706) 554-2324
Phone: (229) 686-5213
Baker County Butts County
Baker County Bibb County Butts County Clerk
Clerk Bibb County Health P.O. Box 350
P. O. Box 548 Department Jackson, GA 30233
Main St. Attn: Vital Records Phone: (770) 775-8200
Newton, GA 31770 171 Emery Highway
Phone: (229) 734-3007 Macon, GA 31217 Calhoun County
Phone: (478) 749-0102 Calhoun County Clerk
Baldwin County P.O. Box 226
Baldwin County Clerk Bleckley County Morgan, GA 31766
201 W. Hancock St. Bleckley County Clerk Phone: (229) 849-4835
Milledgeville, GA 31061 306 SE Second Street
Phone: (478) 453-4807 Cochran, GA 31014 Camden County
Phone: (478) 934-3200 Camden County Clerk
Banks County Banks P.O. Box 99
County Clerk Brantley County Woodbine, GA 31569
P.O. Box 130 Brantley County Clerk Phone: (912) 576-5601
Homer, GA 30547 P.O. Box 398
Phone: (706) 677-2320 Nahunta, GA 31553
Phone: (912) 462-5256
Barrow County
Barrow County Clerk Brooks County
30 N. Broad St., Brooks County Clerk
Suite 321 P.O. Box 665
Winder, GA 30680 Quitman, GA 31643
Phone: (770) 307-3045 Phone: (229) 263-4747
Candler County Clarke County Clarke Coweta County
Candler County Clerk County Clerk PO Coweta County Clerk
705 N Lewis St Box 1868 P.O. Box 945
Metter, GA 30439 Athens, GA 30601-2776 Newnan, GA 30264
Phone: (912) 685-2835 Phone: (706) 613-3190 Phone: (770) 254-2640

Carroll County Clay County Crawford County


Carroll County Clerk Clay County Clerk Crawford County Clerk
P.O. Box 338 P.O. Box 550 P.O. Box 1028
Carrollton, GA 30117 Fort Gaines, GA 31751 Roberta, GA 31078
Phone: (770) 830-5801 Phone: (229) 768-3238 Phone: (478) 836-3313

Catoosa County Clayton County Crisp County


Catoosa County Clerk Clayton County Clerk Crisp County Courthouse
Dept. of Vital Records 112 Smith St Cordele, GA 31015
182 Tiger Trl Jonesboro, GA 30236 Phone: (229) 273-2887
Ringgold, GA 30736 Phone: (770) 477-3208
Phone: (706) 965-7891 Dade County
Clinch County Clinch Dade County Clerk
Charlton County County Clerk 100 P.O. Box 417
Charlton County Clerk Court Square Trenton, GA 30752
100 S 3rd Street Homerville, GA 31634 Phone: (706) 657-4414
Folkston, GA 31537 Phone: (912) 487-2667
Phone: (912) 496-2230 Dawson County
Marriage Bureau Cobb County Dawson County Clerk
(912) 496-2549 Cobb County Clerk P.O. Box 192
County Clerk 1650 County Services Dawsonville, GA 30534
Parkway Phone: (706) 265-2271
Chatham County Marietta, GA 30008
Chatham County Clerk Phone: (770) 514-2300 Decatur County
2011 Eisenhower Drive Decatur County Clerk
Savannah, GA 31406 Coffee County P.O. Box 234
Phone: (912) 356-2138 Coffee County Clerk Bainbridge, GA 31717
County Courthouse Phone: (229) 246-5474
Chattahoochee County Douglas, GA 31533
Chattahoochee County Phone: (912) 384-4799 DeKalb County
Clerk DeKalb County Board of
Columbia County
P.O. Box 299 Health
Columbia County Clerk
Cusseta, GA 31805 Office of Vital Records
P.O. Box 58 Appling,
Phone: (706) 989-3603 445 Winn Way-Box 987
GA 30802 Decatur, GA 30031
Phone: (706) 541-1254
Chattooga County Phone: (404) 294-3700
Chattooga County Clerk Cook County
P.O. Box 211 Cook County Clerk Dodge County
Summerville, GA 30747 212 North Hutchinson Dodge County Clerk
Phone: (706) 857-0700 Adel, GA 31620 P.O. Box 818
Phone: (229) 896-3941 Eastman, GA 31023
Phone: (478) 374-3775 Emanuel County Carnesville, GA 30521
Emanuel County Vital Phone: (706) 384-2403
Dooly County Records
Dooly County Clerk 101 S Main St Fulton County
P.O. Box 322 Swainsboro, GA 30401 Fulton County Clerk
Vienna, GA 31092-0322 Phone: (478) 237-3037 136 Pryor St., Ground
Phone: (229) 268-4217 Death certificates: floor
Emanuel County Probate Atlanta, GA 30303
Dougherty County Court Phone: (404) 613-5295
Dougherty County Clerk PO Drawer 76 Fulton County Bureau of
225 Pine Avenue Swainsboro, GA 30401 Vital Statistics
Albany, GA 31701-2561 99 Butler Street S.E.,
Phone: (229) 436-1589 Evans County 2nd floor
Evans County Atlanta, GA 30303
Douglas County | Clerk Phone: (404) 730-1260
Douglas County P.O. Box 711 Info: (404) 730-1261
Courthouse Claxton, GA 30417
8700 Hospital Drive Phone: (912) 739-4080 Gilmer County
Douglasville, GA 30134 Gilmer County Probate
Phone: (770) 949-2000 Fannin County Court
Fannin County Clerk 1 Westside Square
Early County P.O. Box 245 Ellijay, GA 30540-1071
Early County Clerk Blue Ridge, GA 30513 Phone: (706) 635-4763
P.O. Box 525 Phone: (706) 632-3011
Blakely, GA 31723 Glascock County
Phone: (229) 723-3033 Fayette County Glascock County Probate
Fayette County Clerk Court
Echols County 145 Johnson Avenue P.O. Box 231
Echols County Clerk Fayetteville, GA 30214 Gibson, GA 30810
P.O. Box 118 Phone: (770) 461-9555 Phone: (706) 598-3241
Statenville, GA 31648
Phone: (229) 559-7526 Floyd County Glynn County
Floyd County Vital Glynn County Clerk
Effingham County Records P.O. Box 938 Brunswick,
Effingham County Clerk 315 W 10th St. GA 31521
P.O. Box 307 Rome, GA 30161-2678 Phone: (912) 267-5626
Springfield, GA 31329 Phone: (706) 295-6305
Phone: (912) 754-6071 Court Gordon County
Forsyth County Court Gordon County
Elbert County Forsyth County Clerk Clerk
Elbert County Probate P.O. Box 128 P.O. Box 669
Court Cumming, GA 30130 Calhoun, GA 30701
Elbert County Courthouse Phone: (770) 877-2230 Phone: (706) 629-7314
Elberton, GA 30635
Phone: (706) 283-2016 Franklin County Grady County
Franklin County Clerk Grady County Clerk
P.O. Box 70 Courthouse
250 N. Broad St., Box 1 Hamilton, GA 31811 Jeff Davis County
Cairo, GA 31728-4101 Phone: (706) 628-5038 Jeff Davis County Clerk
Phone: (912) 377-4621 Courthouse
Hart County Hazlehurst, GA 31539
Greene County Hart County Clerk Phone: (912) 375-5836
Greene County Clerk P.O. Box 128
113 C North Main St. Hartwell, GA 30643 Jefferson County
Greensboro, GA 30642 Phone: (706) 376-2565 Jefferson County Clerk
Phone: (706) 453-7789 P.O. Box 307
Heard County Louisville, GA 30434
Gwinnett County Heard County Clerk Phone: (912) 625-3258
Gwinnett County Probate North River Street
Court Clerk Franklin, GA 30217 Jenkins County
Gwinnett Justice and Leesburg, GA 31763 Jenkins County Clerk
Administration Center Phone: (229) 759-6953 P.O. Box 797
75 Langly Dr. Millen, GA 30442-0797
Lawrenceville, GA 30245 Henry County Phone: (478) 982-5581
Phone: (770) 822-8250 Henry County Clerk
345 Phillips Drive Johnson County
Habersham County McDonough, GA 30253 Johnson County Clerk
Habersham County Clerk Phone: (770) 957-6656 P.O. Box 269
P.O. Box 227 Wrightsville, GA 31096
Clarkesville, GA 30523 Houston County Phone: (478) 864-3316
Phone: (706) 754-2013 Houston County Clerk
200 Carl Vinson Pkwy Jones County
Hall County Warner Robins, GA 31088 Jones County Clerk
Hall County Clerk Phone: (478) 987-2880 P.O. Box 1359
P.O. Box 1435 Gray, GA 31032
Gainesville, GA 30503 Irwin County Phone: (478) 986-6668
Phone: (770) 535-6921 Irwin County Clerk
P.O. Box 287 Lamar County
Hancock County Ocilla, GA 31774-0287 Lamar County Clerk
Hancock County Clerk Phone: (229) 468-5138 326 Thomaston Street
Courthouse Square, Barnesville, GA 30204
Drawer G Jackson County Phone: (770) 358-1483
Sparta, GA 31087 Jackson County Clerk
Phone: (706) 444-5343 Courthouse Lanier County
Jefferson, GA 30549 Lanier County Probate
Haralson County Phone: (706) 367-1199 Court
Haralson County Clerk 100 Main St.
P.O. Box 488 Lakeland, GA 31635
Buchanan, GA 30113 Jasper County Phone: (229) 482-3668
Phone: (770) 628-5038 Jasper County Clerk
Courthouse Laurens County
Harris County Monticello, GA 31064 Laurens County Health
Harris County Clerk Phone: (706) 468-6705 Department
P.O. Box 528 2121 Bellevue Road
Dublin, GA 31021 Danielsville, GA 30633 P.O. Box 295
Phone: (229) 272-2051 Mount Vernon, GA 30445-
Marion County 0295
Lee County Marion County Clerk Phone: (912) 583-2681
Lee County Clerk P.O. Box 481
P.O. Box 56 Buena Vista, GA 31803 Morgan County
Phone: (912) 649-5542 Morgan County Clerk
Liberty County 141 East Jefferson Street
Liberty County Clerk McDuffie County Madison, GA 30650
P.O. Box 81 McDuffie County Clerk Phone: (706) 342-1373
Hinesville, GA 31313 P.O. Box 28
Phone: (912) 876-3635 Thomson, GA 30824 Murray County
Phone: (706) 595-3982 Murray County Clerk
Lincoln County Third Avenue
Lincoln County Clerk McIntosh County Chatsworth, GA 30705
P.O. Box 340 McIntosh County Clerk Phone: (706) 695-3812
Lincolnton, GA 30817 P.O. Box 453
Phone: (706) 359-4444 Darien, GA 31305 Muscogee County
Phone: (912) 437-6636 Muscogee County Clerk
Long County 1000 Tenth Street
Long County Clerk Meriwether County Columbus, GA 31901
P.O. Box 426 Meriwether County Clerk Phone: (706) 653-4331
Ludowici, GA 31316 P.O. Box 608
Phone: (912) 545-2131 Greenville, GA 30222 Newton County
Phone: (706) 672-4952 Newton County Clerk
Lowndes County 1113 Usher Street
Lowndes County Clerk Miller County Covington, GA 30209
P.O. Box 1349 Miller County Probate Phone: (770) 784-2045
Valdosta, GA 31603 Court
Phone: (229) 333-5103 155 S. South 1st St., Oconee County
Box 1 Oconee County Clerk
Lumpkin County Colquitt, GA 31737 P.O. Box 145
Lumpkin County Clerk Phone: (912) 758-4110 Watkinsville, GA 30677
99 Courthouse Hill, Phone: (706) 769-5167
Suite A Mitchell County
Dahlonega, GA 30533 Mitchell County Clerk Oglethorpe County
Phone: (706) 864-3742 P.O. Box 187 Oglethorpe County Clerk
Camilla, GA 31730 P.O. Box 70
Macon County Phone: (229) 336-8094 Lexington, GA 30648
Macon County Clerk
P.O. Box 216 Monroe County Paulding County
Oglethorpe, GA 31068 Monroe County Clerk Paulding County Clerk
Phone: (478) 472-7685 P.O. Box 817 116 Main Street
Forsyth, GA 31029 Dallas, GA 30132-1441
Madison County Phone: (770) 443-7541
Madison County Clerk Montgomery County
P.O. Box 147 Montgomery County Clerk Peach County
Peach County Clerk Rabun County Stephens County Clerk
P.O. Box 468 Rabun County Probate P.O. Box 386
Fort Valley, GA 31030 Court Clerk Toccoa, GA 30577-0386
Phone: (478) 825-2313 25 Courthouse Square, Phone: (706) 886-2828
Suite 215
Clayton, GA 30525 Stewart County
Pickens County Phone: (706) 782-3614 Stewart County Clerk
Pickens County Clerk P.O. Box 157
211-1 North Main Street Randolph County Lumpkin, GA 31815
Jasper, GA 30143-9501 Randolph County Clerk Phone: (229) 838-4394
Phone: (706) 692-2515 Court Street
Cuthbert, GA 31740 Sumter County
Pierce County Phone: (229) 732-2671 Sumter County Clerk
Pierce County Clerk P.O. Box 246
P.O. Box 646 Rockdale County Americus, GA 31709
Blackshear, GA 31516 Rockdale County Clerk Phone: (229) 924-7693
Phone: (912) 449-5011 922 Court Street
Conyers, GA 30012 Talbot County
Pike County Phone: (770) 929-4000 Talbot County Clerk
Pike County Clerk P.O. Box 155
P.O. Box 377 Schley County Talbotton, GA 31827
Zebulon, GA 30295 Schley County Clerk Phone: (706) 665-8866
Phone: (770) 567-8734 P.O. Box 352
Ellaville, GA 31806 Taliaferro County
Polk County Phone: (229) 937-2905 Taliaferro County Clerk
Polk County Board of P.O. Box 114
Registrar Screven County
100 Prior St, #101 Screven County Clerk Tattnall County
Cedartown, GA 30125 216 Mims Road Tattnall County Clerk
Phone: (770) 749-2103 Sylvania, GA 30467 P.O. Box 387
Phone: (912) 526-8696 Reidsville, GA 30453
Pulaski County Phone: (912) 557-6719
Pulaski County Clerk Seminole County
P.O. Box 29 Seminole County Probate Taylor County
Hawkinsville, GA 31036 Court Clerk Taylor County Clerk
P.O. Box 458 P.O. Box 148
Putnam County Donalsonville, GA 31745- Butler, GA 31006
Putnam County Clerk 0458 Phone: (478) 862-3357
Courthouse Eatonton, Phone: (229) 524-5256
GA 31024 Telfair County
Phone: (706) 485-5476 Spalding County Telfair County Health
Spalding County Clerk Dept.
Quitman County 132 East Solomon Street P.O. Box 328
Quitman County Clerk Griffin, GA 30223-3312 McRae, GA 31055
P.O. Box 7 Phone: (770) 228-9900
Georgetown, GA 31754 Phone: (229) 868-7404
Phone: (229) 334-2224 Stephens County
Terrell County
Terrell County Clerk P.O. Box 2506 Phone: (706) 465-2227
P.O. Box 525 Ashburn, GA 31714
Dawson, GA 31742 Phone: (912) 567-2151 Washington County
Phone: (229) 995-5515 Washington County Health
Twiggs County Dept.
Thomas County Twiggs County Clerk P.O. Box 271
Thomas County Clerk P.O. Box 202 Sandersville, GA 31082
P.O. Box 1582 Jeffersonville, GA 31044- Phone: (478) 552-3210
Thomasville, GA 31799 0202
Phone: (229) 226-3373 Phone: (478) 945-3390 Wayne County
Wayne County Probate
Tift County Union County Court Clerk
Tift County Health Union County Clerk P.O. Box 1093
Department Route 8 Jesup, GA 31545
305 East 12th Street Blairsville, GA 30512 Phone: (912) 427-2252
Tifton, GA 31794 Phone: (706) 745-2654
Phone: (229) 386-8373 Webster County
Upson County Webster County Clerk
Toombs County Upson County Clerk P.O. Box 29
P.O. Box 889 Preston, GA 31824
Toombs County Clerk Thomaston, GA 30286 Phone: (229) 828-3615
Courthouse Phone: (706) 647-7015
Lyons, GA 30436 Wheeler County
Phone: (912) 526-8696 Walker County Wheeler County Probate
Walker County Probate Court Clerk
Towns County Court P.O. Box 477
Towns County Clerk P.O. Box 445 Alamo, GA 30411
P.O. Box 178 La Fayette, GA 30728 Phone: (912) 568-7161
Hiawassee, GA 30546 Phone: (706) 638-3044
Phone: (706) 896-3467 White County
Walton County White County Clerk
Treutlen County Walton County Clerk P.O. Box 185
Treutlen County Clerk Court Street Annex 1 Cleveland, GA 30528
P.O. Box 88 Monroe, GA 30655 Phone: (706) 865-4141
Soperton, GA 30457 Phone: (770) 267-4571
Phone: (912) 529-3342 Whitfield County
Ware County Whitfield County Clerk
Troup County Ware County Clerk P.O. Box 248
Troup County Probate P.O. Box 1069 Dalton, GA 30722-0248
Court Waycross, GA 31502 Phone: (706) 278-4707
900 Dallas St. Phone: (912) 287-4315
La Grange, GA 30241 Wilcox County
Phone: (706) 883-1690 Warren County Wilcox County Clerk
Warren County Probate Courthouse
Turner County Court Abbeville, GA 31001
Turner County Probate P.O. Box 46 Phone: (229) 467-2220
Court Warrenton, GA 30828
Wilkes County Wilkinson County Worth County
Wilkes County Clerk Wilkinson County Clerk Worth County Clerk
23 East Court Street P.O. Box 201 201 North Main
Washington, GA 30673 100 Main St Sylvester, GA 31791
Phone: (706) 678-2523 Irwinton, GA 31042 Phone: (229) 776-8207
Phone: (478) 946-2222
CHAPTER 4 INTESTACY

Section 1 Intestate Heirs


Unfortunately, many decedents have not left 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 legislatures 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 decedents spouse and children.
The spouse takes the same amount as each of the decedents 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. In
other words, 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
parents 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 decedents 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 decedents surviving siblings, per stirpes, and if none, equally to the decedents
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 decedents 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 decedents surviving uncles and aunts, per stirpes, and if none, equally to the
decedents surviving first cousins, per stirpes.
Section 2 Probate Administration
The administration of any estate involves three basic tasks:

Identifying and collecting the decedents 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 decedents
property is located.

In an intestate estate, the surviving spouse or sole heirs 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 Georgia, in
the county where the decedents 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 representatives
identification of each of the decedents 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

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.
seeking appointment must also file (i) a bond for the decedents estate with good and sufficient
security,2 3 (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.

Section 3 Administration of Decedents Property


3.1 Personal Representatives 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 Decedents Property

The decedents property can be broken down into two categories - probate assets and
non-probate assets.

(a) Probate Assets. Probate assets are those that pass according to the decedents will or by
intestacy if the decedent did not have a will. Probate assets may include real property, personal
property, and other forms of property titled in the decedents name alone. Real Property consists
of all interests in real estate. Personal Property is everything else. 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 decedents
debts and taxes owed by the estate. In most cases, particularly where many years have passed,
the decedents only remaining 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 heirs or legatee
upon the death of the owner. As a consequence, in many cases where the decedent only owned
real estate, no one petitions to have the estate probated until an heirs requires a title that is
marketable and documented in the land records. This creates a problem with the ability to pass
clear title to the property because the chain of title is not properly memorialized in the land
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
personality only; however, where real property is sold and converted into personal assets, 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.
records. By going through the probate process, a record of title is created, and the appropriate
steps are taken to insure that all creditors claims are either paid or barred by the statute of
limitations and that the remaining assets are distributed to the appropriate parties.

(b) Non-probate Assets. 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 decedents 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 representatives first duty is to inventory and
collect all probate assets owned by the decedent.

Before filing a probate for a client, always verify with a title insurance company the
procedure to follow. 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 decedents 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 decedents 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 estates 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 Decedents Debts and Taxes

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

This process begins with the publication of a notice to the decedents 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 estates 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 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 creditors failure to comply with the notice requirement.

3.5 Protection of Decedents 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 Years 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 Years Support statute,
without the need for probate administration. The practitioner is well advised to consider Years
Support to determine whether it is the most efficient, and perhaps alternative, method to achieve
the clients goals. The years 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 Years 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 decedents 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.).

Section 4 Conclusion

In conclusion, the goals of probate administration are to distribute all property and to

4
However, a testator by will may make provision for the spouse in lieu of Years 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 Years Support.
5
Additionally, the lien of certain ad valorem taxes on real estate is divested by the award of property as Years
Support.
create clear title to the real estate. By going through the probate process, you will (i) generate a
court order identifying the decedents 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.
EXHIBIT 1: HEIRS DETERMINATION WORKSHEET
A.
Name of Decedent:
Date of Death:
County of Domicile at death:
Address:

Was an estate opened? Yes No Unknown

B.
Name of Proposed Petitioner:
Address:

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

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

b. If a person is named in (a) immediately above and that person has died since the
decedents death, list 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 decedents death? Yes No Unknown

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 Heirs Property in Georgia Attorney Training Manual Page


45
d. Children of decedent born in wedlock or legally adopted by decedent:

Living Children

Name Age Name Age

Deceased Children
Name:
Date of Death:
County of Domicile at death:
..
Name:
Date of Death:
County of Domicile at death:
..
Name:
Date of Death:
County of Domicile at death:
..
Name:
Date of Death:
County of Domicile at death:

e. Children of decedent born out of wedlock:

Living Children

Name Age Name Age

Deceased Children
Name:
Date of Death:
County of Domicile at death:
..
Name:
Date of Death:
County of Domicile at death:
..
Name:
Date of Death:
County of Domicile at death:
..
Name:
Date of Death:
County of Domicile at death:

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

f. Grandchildren of the decedent:

Living Grandchildren

Name Age Parents Name

Deceased Grandchildren

Name:
Date of Death:
County of Domicile at death:
Name of Parent:
..
Name:
Date of Death:
County of Domicile at death:
Name of Parent:
..
Name:
Date of Death:
County of Domicile at death:
Name of Parent:
..
Name:
Date of Death:
County of Domicile at death:
Name of Parent:

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.

h. Mother and father of the decedent:

Name Age Date of Death, if County of


Deceased Domicile at
Death

(Mother)

(Father)

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

i. Brothers and Sisters of the Decedent:

Living brothers and sisters


Name Age Name Age
Deceased brothers and sisters
Name:
Date of Death:
County of Domicile at death:
..
Name:
Date of Death:
County of Domicile at death:
..
Name:
Date of Death:
County of Domicile at death:
..
Name:
Date of Death:
County of Domicile at death:
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 Parents Name

Deceased Nieces and Nephews

Name:
Date of Death:
County of Domicile at death:
Name of Parent:
..
Name:
Date of Death:
County of Domicile at death:
Name of Parent:
..
Name:
Date of Death:
County of Domicile at death:
Name of Parent:
..
Name:
Date of Death:
County of Domicile at death:
Name of Parent:
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 Parents Name

Deceased great-nieces and nephews

Name:
Date of Death:
County of Domicile at death:
Name of Parent:
..
Name:
Date of Death:
County of Domicile at death:
Name of Parent:
..
Name:
Date of Death:
County of Domicile at death:
Name of Parent:
..
Name:
Date of Death:
County of Domicile at death:
Name of Parent:
NOTE: IF ALL OF THE GREAT-NIECES AND GREAT-NEPHEWS OF THE DECEDENT
ARE ALIVE, YOU MAY STOP.

l. Grandparents of the decedent:

Name Age Date of Death, County of domicile at


if Deceased death
(Mothers Mother)
(Mothers Father)
(Fathers Mother)
(Fathers 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 Parents Name

Deceased aunts and uncles

Name DOD Parents Name

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

n. First Cousins of the decedent who are alive:

Name Age Parents Name

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


EXHIBIT 2: PROBATE / ADMINISTRATION PROCESSES
This Exhibit lists the probate / administration procedures available for a decedents 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 heirs.

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 heirs.

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
heirs 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.

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.
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 clients 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 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 timet1 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 clients 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

1
O.C.G.A. 23-3-40 (2015).
2
O.C.G.A. 23-3-60
interest therein.3 This form of quiet title suit has become a method of clearing clouds to title in
Georgia when there is no specific instrument creating the cloud to the title. 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 clients 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 as strong a proof of title as
is required in 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 another individual claims to have title to the property
based on a specific instrument (such as a deed). For a conventional quia timet suit, there must be
a specific instrument that constitutes a cloud to title. For a quia timet against all the world suit,
there is no requirement that a specific instrument creating a cloud be identified.

O.C.G.A. 23-3-42 specifies when an instrument constitutes a cloud to title. The statute
3
Id.
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. Hawks Landing Homeowners Association, 647 S.E.2d 579 (2007).
provides that an instrument may cloud the title of the true owner and give the claimant an
apparent right in or to the property when it, 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. The true owner can have the apparent owner 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 believe 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

(d) 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:

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

(i.2) Description and origin of the clients possession and ownership (or claim of
ownership) of the property; and

(i.3) Specific identification of the instrument that creates a cloud on the title.1011

(ii) A petition to commence a quia timet against all the world action12 shall be filed in
the county in which the property is located and shall contain and/or allege the following:

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

(ii.2) Description and origin of the clients possession and ownership (or claim of
ownership) of the property;

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

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

10
Id.
11
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).
12
Quiet Title Act, O.C.G.A. 23-3-60.
(ii.5) List of names and addresses of any possible adverse claimants; and

(ii.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.13

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 clients .14 The Georgia Supreme Court
has 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.15

Also, the client must file a notice of lis pendens when the petition is filed.16 The court,
upon receipt of the petition, forwards the petition to a special master .17 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.18

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 sheriffs 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.19

The special master next ascertains the extent of the petitioners title and reports his
findings to the superior court. The superior court then issues a final decree, which must be
recorded in the clerks office. Additionally, a marginal reference to the decree must be entered
upon any recorded instrument stated to be affected by the decree .20 Prior to the special master
issuing his decree, any party has a right to demand a jury trial .21 Any person not previously a
party has a right to intervene within 30 days from the entering of the final decree.22

13
O.C.G.A. 23-3-62.
14
Id.
15
Capers v. Camp, 244 Ga. 7 (1979).
16
O.C.G.A. 23-3-62.
17
O.C.G.A. 23-3-53.
18
O.C.G.A. 23-3-65.
19
O.C.G.A. 23-3-66.
20
O.C.G.A. 23-3-67.
21
O.C.G.A. 23-3-66.
22
O.C.G.A. 23-3-69.
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 Grantors 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 Grantors 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]


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

SealPETITION TO

QUIET TITLE
IN THE SUPERIOR COURT OF BROOKS COUNTY

STATE OF GEORGIA

*
RICHARD JERRYMcLEOD,
*
PlaIntIff
* CIVIL ACTION FILE
v.
*
ALL PERSONS KNOWN OR UNKNOWN
WHO CLAIM OR MIGHT CLAIM * NO.
ADVERSELY TO PLAINTIFFS TITLE TO
*
REAL PROPERTY KNOWN AS
GROOVERVILLE METHODIST CHURCH *
c/o Richard Jerry McLeod
*

Howell L. Watkins II Realty Corp. *


Howell L,Watkins II, individual
Jerri L. Dukes *
Becky Rothrock,
Individually And
in her official capacity as
Brooks County Tax Commissioner,

Defendants

PETITION TO ESTABLISH TITLE AGAINST ALL THE WORLD

COMES NOW, Richard Jerry McLeod, 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 25 Beasley Road and 1675 Liberty Church Road in Brooks CountyGeorgia,

The Superior Court of Brooks County has in rem jurisdiction over this matter pursuant to
O.C.G.A. 23-3-61. Further, venue is proper in Brooks County since it is the county in which the
Brooks

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 25

Beasley Road, Brooks County Georgia according to the present system of numbering

houses in Brooks County, Georgia, and is more particularly described as: Meeting

House and Grooverville Church Lot in plats of survey. true and correct copies are

attached hereto.

3.

Title to the property is currently in the name of Richard Jerry McLeod who acquIred
the property as Heir at Law of his Great Grandfather Richard Ramsey. One of the original
trustees of the unincorporated association known as Grooverville Methodist Church as
evidenced and depicted in Exhibit A attached hereto.

4.
Furthermore, Richard Jerry McLeod has been maintaining the property, including, but

not limited to general upkeep and on a public, continuous, exclusive, uninterrupted and

peaceable basis for more than 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 the owner that the lot has been

continuously used and maintained as his own and to the exclusion of all others. See

Hughes v. Heard, 215 Ga. 156, 109 S.E. 2d 510 (1959). No adjoining landowners have

attempted to use any the property for at least 20 years. The lot is fenced with a locked

gate excluding all others.


5.

Petitioner has completed various steps to insure title to the property including an

Affidavit of Descent and Possession describing the intention of decedents.

6.

The above described property has been the subject of an unlawful and invalid In Rem

Foreclosure Action by Jerri L.Dukes former Brooks County Tax Commissioner and her

successor in office, Becky Rothrock. This unlawful In Rem Tax Foreclosure and sale must be

declared invalid and set aside for the following reasons:

1. Neither Jerri L. Dukes, former Brooks County Tax Commissioner or present Tax

Commissioner Becky Rothrock have ever possessed Any Authority to conduct an

In- Rem tax foreclosure sale in Brooks County Georgia. O.C.G.A. 48-4-76 (a)allows

county tax commissioners to conduct In Rem foreclosures;

but only after the County commissioners have adopted an Ordinance or specific Resolution

authorizing the Tax Commissioner to conduct In Rem foreclosures. Despite Plaintiff's

numerous Open Records Requests; exhibit B attached neither the Tax Commissioner, nor the

County Commission Clerk have been able to produce any ordinance or resolution authorizing

the Tax Commissioner to execute or conduct any In Rem Foreclosure sales.

THEREFORE Jerri L. Dukes, tax commissioner had no authority to conduct any In Rem

foreclosure of the Grooverville Methodist Church tract or execute any tax deed to Howell L.

Watkins II Realty Corp. Thus, the clearly unlawful In Rem tax foreclosure, sale, and tax deed

must be declared null, void, nugatory, and of no effect whatsoever.

2. Georgia county tax foreclosure statutes mandate that all tax foreclosure sales shall be

conducted on the first Tuesday of the Month. However; although Tax Commissioner Dukes

Advertised the In Rem tax foreclosure sale of Grooverville Methodist Church Property for first
Tuesday in December, December 5th, she did not conduct the sale until Wednesday December

6th. (receipts attached hereto as exhibits C, C1 ). Although a public sale is required, Jere Dukes

fraudulently conducted a private sale for the sole benefit of Howell L Watkins and Howell L.

Watkins II Realty Corp. Furthermore, a purchaser at a tax sale is required to pay only by cash,

cashiers check, or postal money order. To further fraudulently accommodate Howell Watkins

Dukes allowed him to pay online with a credit card. It is clearly apparent that Jerri L. Dukes

feels that she is above the law and exempted from all the due process clauses contained in the

Fourth and Fourteenth Amendments of the United States Constitution as well as the rules

mandated by the Georgia Constitution. These actions of Dukes require the In Rem Tax Sale

be declared void on its face, null, nugatory and of no effect whatsoever.

3. Tax Commissioner Jerri Dukes failed to provide an adequate description of the property,

either in her petition or her legal advertisement. Instead she cited no property address,, no deed,

no book or plat where an adequate property description could be found. A valid plat of which is

attached as exhibit A

She failed to list any address for the property even though it has an available 911 address. The

tax commissioner's property description is inadequate and erroneous; AND purports to include

and convey a portion of property which has never been a part of the subject Grooverviille

Methodist Church Tract, That property erroneously included in tax commissioner Dukes'

description is adequately described in adjacent landowner's deed and and plat filed in the Clerk's

office. Georgia In Rem tax foreclosure statute O.C. G. A. 48-4-81 clearly states that an

adequate description of the property must be provided in all advertisements of the subject

property, The tax commissioner purports to use the tax assessor's computer map as the legal

description of the property. The map clearly states in its footnote that it is not to be used in any

legal document. This map is erroneous and does not accurately describe the property. It is not an
official plat and offers no legal substitute for an adequate description. Therefore; Jerri L. Dukes,

tax commissioner is attempting to foreclose and transfer property belonging to another, Clearly

you can not transfer or sell property you don't own. This act by Dukes must automatically

invalidate the foreclosure , sale and tax deed executed to Howell L Watkins II Realty Corp.

4. The Georgia Code O.C.G.A. 48-4-81 forbids tax commissioner from accepting any bid for

any amount below the minimum bid, which is described as the amount of taxes due ($4900 plus

$1958 in fees for a estimated total of $6858.00). Tax commissioner Dukes claimed four

years taxes were due but accepted bid for only one year's delinquent taxes allowing Howell L.

Watkins II Realty Corp to pay only $2361.92 as purchase price and grant of a tax deed to the

property (34 percent of mandatory minimum bid) and three (3) per cent of property value as

appraised by Brooks County tax assessors. This unlawful action is clearly prohibited by the

the statute. As provided by O.C.G.A. 48-4-81 (b)

5. Tax Commissioner Jere Dukes failed to provide any annual notices of any taxes due on the

subject Grooverville Methodist Church Tract, Georgia statutes state that no foreclosure sale can

be held where the tax commissioner failed to send annual notices of taxes due. Jerri L. Dukes

undeniably never mailed any annual notices of any taxes due on the Grooverville Methodist

Church Tract. The property has always been declared tax exempt and Brooks County Tax

assessors never mailed any notices that tax exemption had been revoked. Therefore plaintiff had

no reason to believe any taxes were due or delinquent. The In Rem Petition filed by defendant

Dukes fails to show the amount of taxes due for each year delinquency is claimed and penalties

and interest for the delinquency, The Georgia In Rem Statute requires that this itemization must

be included within the petition for it to be valied.

Georgia tax foreclosure statutes require that when property is advertised for foreclosure that in
addition to publication he must receive a notice by certified mail, that a sign be posted on the

property or that taxpayer be contacted personally, Plaintiff received no such notifications of Tax

Commissioner Jere Dukes December 5th public sale or her December 6th private sale of the

Grooverville Methodist Church Property and no notice was posted on the property.

6. Georgia O.C.G.A. 48-4-76 requires the tax commissioner to provide delinquent taxpayer

with the amount due to avoid foreclosure and O.C.G.A. 48-4-43 requires that the tax

commissioner and the purchaser to divulge and notify the property owner of the amount

purchaser paid for the property and amount required to be tendered to redeem the foreclosed

property. Tax Commissioner Debbie Rothrock refused to divulge the amount paid for the

property or supply any records of the transfer maintained in her office, or the amount required

for redemption in violation of Georgia law regulating county tax foreclosures.

Purchaser of property at a tax foreclosure sale is required by O.C.G.A. 48-4-46 (b) to provide

notice to the property owner of right to redemption of foreclosed property as described in

subsection (a) of this Code section. the purchaser shall deliver the notice and copies together

with a list of the persons to be served to the sheriff in which the county is located not less than 45

days before the date set in each notice for the right to redeem. Within 15 days after delivery to

him the sheriff shall serve a copy of the notice personally or by deputy upon each of the persons

included on the list furnished him who reside in the county, The sheriff shall make an entry of

the service on the original copy of the notice . Leaving a copy of the notice at the residence of

any person to be served with the notice shall be a sufficient service of the notice. (d) Each

original notice together wit the entry of the sheriff on the notice shall be returned to the person

by whom the service was requested upon the payment of the sheriff's costs

No such notice has been delivered or made available to plaintiff as required under the law.

Thus the tax foreclosure sale must be declared null and void for violation of this provision.
7. FURTHEMORE, a Notice of appeal was filed in the Superior Court of Brooks County of

the Court's order on plaintiff' McLeod's complaint against Brooks County Tax Assessors' and

tax commissioner's failure to provide notice of changes in assessment of the subject property in

the instant case for the tax commissioner's failure to mail any annual notices of property

tax due. This appeal is docketed in The Supreme Court of Georgia as Case No. S17M0659 and

is scheduled for oral argument April 17, 2017. A subsequent appeal was filed from the Superior

Court's order granting Tax Commissioner Jere Dukes' In Rem foreclosure petition. A decision by

the Supreme Court reversing the trial court's decisions will obviously render the tax

commissioner's foreclosure sale invalid and void even if the aforementioned unlawful acts and

omissions by the tax commissioner had not been committed and allowed as in the instant case.

The above appeals to the Supreme Court of Georgia also appeal the trial court's disregard for

the Taxpayer Uniformity Clause of the Georgia Constitution which states that all real property

must be treated uniformly for tax assessments, Article VII, Section I, Paragraph III.

The nearby Liberty Baptist Church was built at approximately the same time as Grooverville

Methodist Church, both are recognized as historical properties and marked with bronze markers

installed by the Georgia Department of Natural Resources , Both churches have been closed for

more than twenty years and both churches are now privately owned. HOWEVER; Liberty

Baptist Church is being exempted from any taxes, Tax Commissioner Jere Dukes had both

churches on her list of properties to be sold for taxes but deleted Liberty Baptist Church from

her list. No plausible explanation has been offered for this disparity of taxation and violation of

Georgia's Taxation Uniformity Clause of the Georgia Constitution Article VII, Section III,
\
Paragraph III.

For the foregoing reasons Plaintiff requests the aforementioned tax foreclosure sale
be declared invalid, defective, null and void, nugatory and of no effect whatsoever.

Plaintiff further requests that a judgment be granted quieting title to the Grooverville

Methodist Church Property in the name of Richard Jerry McLeod

Attached hereto as Exhibit E is a list of all possible adverse claimants of whom

Plaintiff has actual or constructive notice.

7.

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.

8.

As required by O.C.G.A. 23-3-61, a Notice of Lis Pendens is being filed

contemporaneously with this Petition.

WHEREFORE, Plaintiff prays:

That the Court assume in rem jurisdiction against all the world to establish

Plaintiffs title to the land pursuant to O.C.G.A. 23-3-61

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);

That Plaintiffs have a trial by jury on all issues so triable;

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 Plaintiffs

\
That title to the property be removed; and

That Plaintiffs have such other and further relief as may be equitable and just

under the facts set out herein.


a. Respectfully submitted, this day of January 2017
By:
Richard Jerry McLeod Pro Se

1675 Liberty Church Road


Boston, Georgia 31626
229-263-7981
VERIFICATION

Personally appeared before me the undersigned, Richard Jerry McLeod 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 January ,201 7

Notary Public

(Notarial Seal)
IN THE SUPERIOR COURT OF BROOKS COUNTY
STATE OF GEORGIA

*
RICHARD JERRYMcLEOD
*
Plaintiff,
* CIVIL ACTION FILE
v.
*
ALL PERSONS KNOWN OR UNKNOWN
WHO CLAIM OR MIGHT CLAIM * NO.
ADVERSELY TO PLAINTIFFS TITLE TO
*
REAL PROPERTY KNOWN AS
GROOVERVILLE *
METHOSIST CHURCH
TRACT , *
BROOKS 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 January , 2017 , at oclock .m. in the Office of the Clerk of
Superior Court of Brooks 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 Richard Jerry
McLeod

This day of January , 2017.

BY:
Pro Se
B R O O K S
IN THE SUPERIOR COURT OF _ _ _ COUNTY
STATE OF GEORGIA

*
R I C H A R D J E R R Y M
__ _ _ _ _ _ _ , *
cLEOD
* CIVIL ACTION FILE
Plaintiff,
*
v.
* NO.
ALL PERSONS KNOWN OR UNKNOWN
WHO CLAIM OR MIGHT CLAIM *
ADVERSELY TO PLAINTIFFS TITLE TO
REAL PROPERTY KNOWN AS
G R O O V E R V IL L E M E T H O D IST CHURCH c/o Richard Je rry McLeod
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _,
_B_R_O_O_K_S COUNTY *
GEORGIA,
*
Defendants.
*
H_O_W E_L_L_W A_T_K_IN_S
*
JERE DUKES
BECKY ROTHROCK,,
ORDER APPOINTING SPECIAL MASTER
Individually and in
Her Official Capacity of
T he above Petition having been read and considered, it is hereby ordered that
Brooks C
, 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:
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 44-6-123 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 clients 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:

(C.G.A.a) Accompanied by a claim of right;

(C.G.A.b) Public;

(C.G.A.c) Continuous and uninterrupted;

(C.G.A.d) Exclusive; and

(C.G.A.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 1 2 Note that payment of
taxes is but one factor to be considered along with other evidence and receives no elevated
1
Smith v. Board of Educ., 168 Ga. 755 (1929).
2
Shiels v Roberts, 64 Ga. 370 (1879).
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 possessors 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.
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 remaindermans 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
wifes property.17 Note that devise of real property in a will ,18 a letter containing a gift of land ,19
and instruments dividing land20 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 possessors 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
13
DANIEL F. HINKEL, PINDARS 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.
possession. Note, however, that unlike most jurisdictions, in Georgia the prescriptive period
merely tolls 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 Ouster24

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 claimants 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.
CHAPTER 7 PARTITION
A person who becomes a co-owner of real property in Georgia may wish to consider a
partition of such property at some point during his or her ownership. 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). A partition may be caused by the co-owner through either
equitable partition or statutory partition. Ordinarily, statutory partition is the appropriate
proceeding. Equitable partition is appropriate where either statutory partition is not available or
certain circumstances render an equity proceeding more suitable or just.

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 (as is often the case with heirs property). These situations often arise between the family
members who receive undivided fractional interests in property from deceased relations via
intestate succession.

On April 16, 2012, the Georgia General Assembly enacted the Uniform Partition of Heirs
Property Act (the Act)1 which was signed into law by Governor Nathan Deal. The Act became
effective on January 1, 2013 and applies to partition actions filed on or after January 1, 2013. As
a result of the Acts passage, for the first time in Georgias history, the Georgia Code defines the
term heirs property. In any action for partition (whether statutory or equitable), a court must
first determine if the property in question qualifies as heirs property. If the court determines the
definition of heirs property applies, the court will proceed to adjudicate the partition action under
the Act, unless the parties agree otherwise. The Act provides owners of heirs property certain
beneficial statutory rights in partition proceedings that are not otherwise given to owners who
hold land as tenants in common. In traditional partition actions not involving heirs property, 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 in 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 the Act as
applied to statutory partition actions, as well as when an equitable partition is appropriate.
Sample pleadings are included as exhibits at the end of the chapter. For a more detailed review of
partition proceedings, the volunteer attorney should consult the Georgia Code.

1
H.B. 744, Uniform Partition of Heirs Property Act (2011-2012); O.C.G.A. 44-6-180 (2015).
Section 1 Applying for Statutory Partition
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 grantors estate, or otherwise. However, to the extent the clients 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 will be divided among the common owners.2

If the client is a life tenant with respect to certain real property, he or she 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, the court must determine that the property is capable of a fair and
equitable partition.3 Generally, a partition by a life tenant will only be effective during the life of
the life tenant.4

Property that is encumbered by an easement may be partitioned.5 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.6

A client may apply for partition when the client is a co-owner of the property with at
least one other individual, and no separate agreement exists which prescribes another method by
which to subdivide the property. 7 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.8 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.9

2 Applying for Partition

a. Notice: Should the client decide to apply for a statutory partition, he or she
must first give the other concerned parties at least twenty (20) days notice of his or her intention
to make the application.10 If any of the other parties are a minor, a person with a mental or
cognitive disability, or a beneficiary of a trust, such notice must be served on such partys
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.

2
O.C.G.A. 44-6-160 (2015).
3
O.C.G.A. 44-6-172 (2015).
4
Teasley v. Hulme, 150 Ga. 495, 104 S.E. 150, 153 (Ga. 1920).
5
See City of Warm Springs v. Bulloch, 213 Ga. 164, 97 S.E. 2d 582, 583 (Ga. 1957).
6
Leggitt v. Allen, 85 Ga. App. 280, 69 S.E. 2d 106, 108 (Ga. App. 1952).
7
O.C.G.A. 44-6-160 (2015).
8
Adams v. Butler, 135 Ga. 405. 69 S.E. 559, 560 (Ga. 1910).
9
See Mills v. Williams, 208 Ga. 425, 67 S.E. 2d 212, 217 (Ga. 1951).
10
O.C.G.A. 44-6-162 (2015).
b. 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

c. 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 part having an
interest in the land.13 A sample complaint requesting a partition in kind is attached to this chapter
as Exhibit 2.

d. 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 clients
guardian or trustee (as the case may be) may make a partition application for the benefit of the
client.14

Section 2 Applying for Equitable Partition

2.1 When Equitable Partition is Appropriate

Equity has jurisdiction only when the statutory remedy is insufficient, or particular
circumstances render an equity proceeding more suitable or just. 15 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. 16 The following are examples of where equitable
partition is appropriate:

1. Where the co-owners interest in the land was conveyed or is governed by unwritten
agreements, or by written agreements of questionable validity. 17
2. Where the partition action involves equitable claims, such as a claim for an
accounting or an assertion of estoppel.18
3. Where the partition action is part of a group of other disputes.19
4. Where the rights of a party to the dispute are based on prescription.20
5. Where zoning requirements make a statutory partition in kind impracticable.21

11
O.C.G.A. 44-6-160 (2015).
12
Id.
13
See Wright v. Hill, 140 Ga. 554 (1913); Dollar v. Dollar, 214 Ga. 499 (1958).
14
O.C.G.A. 44-6-161 (2015).
15
O.C.G.A. 44-6-140 (2015).
16
See Burnham v. Lynn, 235 Ga. 207, 219 S.E. 2d 111, 112 (Ga. 1975).
17
See Coker Properties, L.P. v. Brooks, 278 Ga. 638, 604 S.E. 2d 766 (Ga. 2004).
18
Id.
19
Gorman v. Gorman, 239 Ga. 312, 236 S.E. 2d 652, 653 (Ga. 1977).
20
Bailey v. Johnson, 247 Ga. 657, 278 S.E. 2d 384, 385-6 (Ga. 1981).
21
See Chaney v. Upchurch, 278 Ga. 515, 603 S.E. 2d 255, 256 (Ga. 2004).
6. Where interests of co-owners cannot be definitely ascertained and set apart by law.22
7. In divorce proceedings, where property is jointly owned by husband and wife.23
8. 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.24

2.2 Jurisdiction and Venue under Equitable Partition

The Georgia Superior Courts have jurisdiction over equitable partition proceedings. 25
The client should apply for partition in the county in which the defendants reside. 26 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.27

Section 3 Adjudication under the Act


3.1 Determination of Heirs Property

a. Overview: Upon the receipt of an application to partition real property, the court
will first determine whether the property meets the definition of heirs property. If the court
determines the definition of heirs property applies, the court will proceed to adjudicate the
partition action under the Act, unless the parties agree otherwise on record. The Act defines heirs
property as land that is held in tenancy in common and that satisfies all three of the following
requirements as of the date the partition action is filed:

1. There is no agreement in a record binding all the co-owners, which governs the
partition of the property;
2. One or more of the co-owners acquired title from a relative, whether living or
deceased; and
3. Any of the following applies:
a. Twenty percent (20%) or more of the interests are held by co-owners who are
relatives;
b. Twenty percent (20%) or more of the interests are held by an individual who
acquired title from a relative, whether living or deceased; or
c. Twenty percent (20%) or more of the co-owners are relatives.28

b. Requirement of No Binding Partition Agreement: The first requirement is that


there be no agreement on record governing the partition of the property that binds all the co-
owners. It is common that tenancy in common ownership arrangements have binding agreements
that govern the operation of the property. Such agreements may contain provisions governing the
payment of taxes, insurance, maintenance or possession. These agreements may also govern the
22
Fountain v. Davis, 71 Ga. App. 1, 29 S.E. 2d 798, 803 (Ga. App. 1944).
23
See Reaves v. Reaves, 244 Ga. 109, 259 S.E. 2d 52, 53 (Ga. 1979).
24
See Taylor v. Sharpe, 221 Ga. 282, 144 S.E. 390, 391-2 (Ga. 1965).
25
Burnham v. Lynn, 219 S.E. 2d 111 (Ga. 1975).
26
Roberts v. Burnett, 164 Ga. 64, 137 S.E. 773 (Ga. 1927).
27
Cock v. Calloway, 141 Ga. 774, 82 S.E. 286 (Ga. 1914).
28
O.C.G.A. 44-6-180(5) (2015).
partition of the property. As is often the case, these co-tenancy agreements protect the rights of
the co-owners in case of a partition action; the presence of such a provision will bar the property
from qualifying as heirs property. 29

c. Requirement that Title be acquired from a Relative: The second requirement is


that one or more of the co-owners must have acquired title to the property from a relative,
whether the relative is living or deceased. This is satisfied in the case of property that is acquired
through intestate succession.30 As previously discussed in Chapter 4, property passed through
intestacy is inherited by the spouse and children first. If no spouse or child exists, the property
passes to the next closest relative until the rightful heirs is determined.

d. The 20% Rule:The third requirement is known as the 20% Rule. Three options
exist that will allow a property to satisfy the 20% rule. The first option requires that at least 20%
of the interests in the property be held by relatives. The second option requires that at least 20%
of the interests are held by an individual that acquired the interest from a relative, whether living
or deceased. The final option requires that at least 20% of co-owners be relatives.31 The final
option differs from the first option as the final option relates to the total number of tenants, rather
than percentage interests in the property.

If the property meets all three requirements of subsections 2.1(ii)-(iv), the property is
defined as heirs property and the court will continue the partition action under the Act. By
proceeding under the Act, heirs property owners are provided significant protections that were
not realized prior to the passage of the Act.

3.2 Required Posted Signage on Property

Within ten (10) days of the determination that the property qualifies as heirs property and
an order for service by publication is granted, the plaintiff must post a conspicuous sign in the
right of way adjacent to the property that provides notice of the partition action. This posted sign
must state the following: notice of the partition action, name and address of the court presiding
over the action, the common designation by which the property is known. In addition, the court
may require the plaintiff to publish the name of the plaintiff and the names of the known
defendants on the posted sign.32

The requirements of notice provided by the Act provide significant protections for many
heirs property owners. Traditional notification methods under the existing statutory and equitable
partition statutes do not provide as strong a protection as the signage requirement provides. The
requirement of a posted sign set forth by the Act benefits those landowners, that are not known to
petitioner, and that do not live on the property, but return to the property regularly, by providing
notice on the property itself.

29
O.C.G.A. 44-6-180(5)(A) (2015).
30
O.C.G.A. 44-6-180(5)(B) (2015).
31
O.C.G.A. 44-6-180(5)(C) (2015).
32
O.C.G.A. 44-6-182 (2015).
3.3 Appraisal of Fair Market Value

Once determined the property is heirs property, the court must assign a fair market value
to the property. Unless all co-owners agree otherwise, the Act requires the court to conduct an
appraisal of the fee simple estate of the property as if it were solely owned, to determine the fair
market value of the property. Valuation of the full fee simple ownership of the property, as
opposed to valuing each fractional interest, ensures a fair valuation of the land. The appraisal
must be completed by an independent appraiser which will file an appraisal report with the court
upon completion of the appraisal. Once the appraisal report is filed with the court, the court will
notify each known party (i) of the appraised fair market value of the property, (ii) that the report
is available at the clerks office, and (iii) that each party has the right to file an objection to the
appraisal not later than thirty (30) days after the notice is sent. Not less than thirty (30) days after
notice is sent to the parties, whether or not any party objects the appraisal report, the court will
hold a hearing to determine the fair market value of the property. In making its determination of
fair market value, the court will consider the court ordered appraisal and any other relevant
evidence offered by a party. 33 After the hearing on the fair market value, but before considering
the merits of the partition action, the court shall make a final determination of the fair market
value of the property and send notice to the parties of the value.

However, where the court determines that the evidentiary value of an appraisal is
outweighed by the cost of the appraisal, the court will bypass the appraisal process and determine
the fair market value of the property after a hearing on the same.

The process of appraisal under the Act provides significant protection to heirs property
owners. In a traditional partition action involving non-heirs property, the court will appoint three
qualified persons to make appraisals of the property. The average of the three appraisals will
constitute the appraised price of the property for purposes of a private sale among the co-owners.
Notice of the amount of the appraised price is then served to all parties in interest within five (5)
days after the appraised value is established.34 The Act provides a more even approach by
appointing an independent appraiser and holding a hearing to determine the final valuation.

In summary, the Act requires that the court determine the value of the property. The Act
creates a preference for valuation of the property according to the following methods: (i) private
agreement among the co-owners on how the method of valuation; (ii) if the court determines the
cost of the appraisal is prohibitive, the court will determine the fair market value after an
evidentiary hearing on the matter; and (iii) a court ordered appraisal conducted by an
independent appraiser.

3.4 Partition by Sale; Buyout Rights

a. Buyout Rights:

If any co-owner(s) requests a partition by sale, following the determination of the fair
market value of the heirs property, the court is required to send notice to all known parties of the
33
O.C.G.A. 44-6-184 (2015).
34
O.C.G.A. 44-6-166.1 (2015).
action that any co-owner, except the co-owner(s) that requested the partition (individually and
collectively, Requesting Co-Owner), is eligible to purchase all of the interests of the
Requesting Co-Owner. The co-owners that did not request the partition by sale have forty-five
(45) days after the notice is sent to notify the court that it exercises the option to buy all the
interests of the Requesting Co-Owner (the Option Period). A sample notice of election
(Exhibit 3) is attached to this chapter. In addition, no later than forty-five (45) days after the
court sends notice of buyout rights to the parties, any co-owner entitled to exercise the buyout
option may request the court to authorize the sale of interests of co-owners named as defendants
and served with the writ or application for partition, but that did not appear in the action. If a co-
owner exercises the buyout option, the purchase price of each interest of a Requesting Co-
Owners interest is the fair market value of the property (as determined by the court) multiplied
by the Requesting Co-Owners fractional ownership of the entire property.

If only one co-owner exercises the option to buy all the interests of the Requesting Co-
Owners, the court will notify all parties of that fact. The electing co-owner will pay the purchase
price as described above.35

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. After an appraisal
is performed by an independent appraiser, the court determines that the Blackacre has a fair
market value of $120,000.00. X and Y request a partition by sale.

If client elects to exercise the option to buy the interests of X and Y (the Requesting Co-
Owners), and client is the only co-owner to make such election, client must pay $60,000.00 for
the interests of X and Y (50% of the fair market value). X receives $36,000.00 (30% of the fair
market value) and Y receives $24,000.00 (20% of the fair market value).

Client now holds a 70% interest in Blackacre (20% originally held plus 50% for the
acquired interests of X and Y). Z maintains its 30% interest in Blackacre.

If multiple co-owners elect to buyout the interests of the Requesting Co-Owners, the
court allocates the right to buy the interests among the electing co-owners based on each electing
co-owners existing fractional ownership of the entire parcel, divided by the total existing
fractional ownership of all co-owners electing to purchase. The court will then send notice to all
parties of the fact and the purchase price to be paid by each electing co-owner.36

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. After an appraisal
is performed by an independent appraiser, the court determines that the Blackacre has a fair
market value of $120,000.00. X and Y request a partition by sale.

If client and Z elect to exercise the option to buy the interests of X and Y (the Requesting
Co-Owners) client and Z must pay a total of $60,000.00 for the interests of X and Y (50% of the
fair market value). X receives $36,000.00 (30% of the fair market value) and Y receives
35
O.C.G.A. 44-6-185(d)(1) (2015).
36
O.C.G.A. 44-6-185(d)(2) (2015).
$24,000.00 (20% of the fair market value). The purchase price is allocated between client and Z
based on each partys fractional interest in the property. Client is required to pay 40% of the
purchase price (20% fractional interest divided by the 50% total fractional interest of all parties
electing to purchase the property). Z is required to pay 60% of the purchase price (30%
fractional interest divided by the 50% total fractional interest of all parties electing to purchase
the property). Thus, client will pay $24,000.00 and Z will pay $36,000.00.

Client now holds a 40% interest in Blackacre (20% originally held plus 40% of the
acquired interests of X and Y). Z now holds a 60% interest in Blackacre (20% originally held
plus 60% of the acquired interests of X and Y).

However, if no co-owner elects to buy all the interests of the Requesting Co-Owners, the
court will send notice to the parties of the fact and the resolve the action as a partition in kind or
through a public sale, as described below.37

If one or more co-owners elect to purchase all the interests of the Requesting Co-Owners,
and the court sends notice to all parties notifying the parties of the election, the court will set a
date, not sooner than sixty (60) days after the date the notice was sent, by which the electing co-
owners must tender the apportioned price.38 Beginning with the forty-five (45) day Option
Period, and through the minimum sixty (60) day period to tender the purchase price, electing co-
owners have a minimum of 105 days to gather funds in an effort to buyout the Requesting Co-
Owners interest. Though gathering the requisite funds is still a challenge to many heirs property
owners, the Act provides electing co-owners, at a minimum, fifteen (15) additional days over
traditional partition procedure to gather funds to purchase the Requesting Co-Owners interests.
Under the Georgia Code, traditional partitions by sale not involving heirs property allow electing
co-owners ninety (90) days after the courts determination of fair market value to tender purchase
money to buyout plaintiff.39

The Act contains a very complex and detailed procedure for how the buyout procedure is
conducted. This includes procedures in specific scenarios. Any attorney representing a client in
a partition proceeding should conduct a careful review of the Georgia Code.

b. Statutory Preference for Partition In Kind:

If all interests of the Requesting Co-Owners are not purchased through the buyout option,
or if a co-owner that remains requests a partition in kind, the Act provides for a statutory
preference for resolving the action through a partition in kind. The court will order the partition
in kind unless the court finds that a partition in kind creates material prejudice to the co-owners
as a whole. The court has a variety of factors to consider in determining whether partition in kind
results in prejudice to the co-owners. In considering the factors, the court does not weigh
individual factors against one another, but instead weighs the totality of the factors. The factors
the court considers are:

37
O.C.G.A. 44-6-185(d)(3) (2015).
38
O.C.G.A. 44-6-185(e) (2015).
39
O.C.G.A. 44-6-166.1(e)(1) (2015).
1. Whether the property could practicably be divided among the co-owners;
2. Whether the partition in kind would apportion the property in a way that the fair market
value of the individual parcels resulting from the partition would be materially less than
the fair market value of the property as if it were sold as a whole parcel;
3. Evidence of the collective duration of ownership of the property by a co-owner and one
or more of the predecessors in title or possession to the co-owner and were also relatives
of the co-owner;
4. The sentimental value of the property to the co-owners;
5. The use of the property by a co-owner and the degree of harm that would arise if the co-
owner could not continue the same use of the property;
6. The degree to which the co-owners have contributed to their proportionate share of the
property taxes, insurance, and other expenses associated with maintaining the property, or
have contributed to the physical improvement of the property;
7. Any other relevant factor.

If, after weighing the above listed factors the court finds that partition in kind would result in
material prejudice to the co-owners, the court will order a partition by sale through the open
market (if this is the case, please proceed to Section 3.4(c)). However, if no co-owner has
requested partition by sale, the court will dismiss the partition action.40

If the court proceeds with the partition in kind, the court will first examine petitioners
title and share of the premises to be partitioned. 41 Thereafter, the court will issue an order
directing the clerk of the superior court to issue a writ of partition directed to five freeholders of
the county of the county in which the lands are located who shall serve as partitioners. Under the
Act, each partitioner must be a discreet person, impartial and not a party to or a participant in the
writ of partition.42

The partitioners should give all parties at least eight days prior notice of the time of
executing the writ.43 A sample notice of writ (Exhibit 4) is attached to this chapter. 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 (3) 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.

Once the writ has been returned, any party to the proceedings will have an 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.44

40
O.C.G.A. 44-6-186 (2015).
41
O.C.G.A. 44-6-163 (2015).
42
O.C.G.A. 44-6-183 (2015).
43
O.C.G.A. 44-6-164 (2015).
44
O.C.G.A. 44-6-165 (2015).
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 extent such
parties were notified of the clients application and of the writs execution. 45 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.46

c. Court Ordered Open Market Sale:

An open-market sale is the last resort in a partition action under the Act. If the court
orders an open market sale, the court will appoint a disinterested broker to offer the property for
sale, unless the parties, not later than ten (10) days after the order of the sale, agree on a broker.
The broker is to offer the property for sale at a price no lower than the fair market value as
determined by the court.

The court, in its discretion, has the ability to order a sale by sealed bids or a public sale if
the court finds such methods would be more economically advantageous to the co-owners as a
whole.47

Section 4 Statutory Partitions not Adjudicated under the Act


The Act does not replace existing partition law. Rather, the Act provides a subpart to the
Georgias existing partition laws. As stated before, upon application for partition, the court will
examine whether the property in question is heirs property. If the court finds that the property
qualifies as heirs property, the action will proceed under the Act. However, if the court
determines that the property is not heirs property, the court will proceed under the preexisting
partition statutes. This section gives a brief overview on statutory partition actions where the
property does not qualify as heirs property.

4.1 The Statutory Partition Process Partitions in Kind

a. Application Process: The application process, as described in Section 1, in


regards to notice, jurisdiction and venue, application and how to apply for partition is identical,
whether or not the property in question qualifies as heirs property.48

b. 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

45
O.C.G.A. 44-6-166 (2015).
46
Id.
47
O.C.G.A. 44-6-187 (2015).
48
O.C.G.A 44-6-163 (2015).
cast doubt as to the clients claims, a jury will try the issue.49

c. 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 clients title and
share of the premises to be partitioned. If the court is able to confirm the clients title and share,
the court will pass an order directing the clerk of the court to issue a writ of partition. 50 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. 51 If this is the case, please refer
to Section 4.2, below. Otherwise, the court will then direct the writ to five freeholders of the
county to act as partitioners.52 Unlike under the Act, there is no requirement that the partitioners
be a discreet person, disinterested, impartial and not a party to or a participant in the writ of
partition. This provides less protection to the owners of the property than would be enjoyed
under the Act.

d. Notice of Writ: The partitioners should give all parties at least eight days prior
notice of the time of executing the writ.53

e. 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 (3) 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.54

f. 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.55

g. 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 extent such parties were notified of the clients application and of the writs execution. 56 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

49
O.C.G.A. 44-6-165 (2015).
50
O.C.G.A. 44-6-163 (2015).
51
Partition in kind may be considered inequitable if division of the property cannot be made by means of metes and
bounds because of improvements made, because the property is valuable for mining purposes, the property is
valuable for the purpose of the erection of mills or other machinery, or because the value of the property will be
depreciated if subdivided. O.C.G.A. 44.-6-166.1(b).
52
Id.
53
O.C.G.A. 44-6-164 (2015).
54
Id.
55
O.C.G.A. 44-6-165 (2015).
56
O.C.G.A. 44-6-166 (2015).
partition to be made if the interested parties will appear.57

4.2 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.58

b. Partitions by Sale - The Process: Once the court has determined that a partition
by sale is appropriate, the court will appoint three (3) 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 (5)
days after the appraised price is established.59

Within fifteen (15) 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 (15) 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 (15) 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.60

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
Section 4.2(c)).

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 partys 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-owners 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-owners existing
percentage ownership divided by the total percentage ownership of all co-owners participating in
the buyout.

Within ninety-five (95) days after the appraised price is established, the client and other

57
Id.
58
O.C.G.A. 44-6-166.1 (2015).
59
Id.
60
This differs from the Act in that in a statutory partition action, even the party requesting the partition by sale can
purchase the interests of the other co-owners. This leaves many owners at risk, as a hostile co-owner may sell their
share to a third-party, who in turn may apply for a partition by sale.
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.

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 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-owners behalf.

4.3 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.61 The courts 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 co-owner who improved it. 62Additionally, 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. 63

Alternatively, in a partition by sale, the court may award to the purchaser a part
previously sold ultra vires by a co-owner.64 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.65

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. 66 For example, the court may

61
See Nixon v. Nixon, 197 Ga. 426, 29 S.E. 2d 613 (Ga. 1944).
62
Walton v. Ward, 142 Ga. 385, 82 S.E. 1027 (Ga. 1914).
63
See Collier v. Bank of Tupelo, 190 Ga. 598, 10 S.E. 2d 61 (Ga. 1940).
64
Lane v. Malcolm, 141 Ga. 424, 81 S.E. 125 (Ga. 1914).
65
Baker v. Baker, 245 Ga. 525, 250 S.E. 2d 436 (Ga. 1998).
66
O.C.G.A 44-6-170 (2015).
(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.67

4.4 Post-Partition Remedy

The superior courts 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 (12) 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.68

Section 5 Equitable Partitions not Adjudicated under the Act


In every case of equitable partition, the court will mold its decree to meet the general
justice and equity of each co-owner 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 co-owner may not be
protected thereby.69 The court may be flexible when crafting its remedy and each partition or sale
is handled on a case-by-case basis.70 The decree on a proceeding for equitable partition will
cause title to be conveyed; no deed or other conveyance document is required. 71 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.

67
See McClain v. McClain, 241 Ga. 162, 243 S.E. 2d 879, 880 (Ga. 1978).
68
O.C.G.A. 44-6-171 (2015).
69
O.C.G.A. 44-6-141 (2015).
70
Chaney v. Upchurch, 603 S.E. 2d 255, 257 (Ga. 2004).
71
O.C.G.A. 44-6-142 (2015).
EXHIBIT 1: SAMPLE NOTICE OF APPLICATION

Georgia, County

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

You are hereby notified that I will 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 .
EXHIBIT 2: SAMPLE COMPLAINT FOR PARTITION IN KIND
IN THE SUPERIOR COURT OF COUNTY

STATE OF GEORGIA

, )
)
Plaintiff, ) CIVIL ACTION FILE 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]


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
EXHIBIT 3: SAMPLE NOTICE OF ELECTION

IN THE SUPERIOR COURT OF COUNTY


STATE OF GEORGIA

, )
)
Plaintiff, ) CIVIL ACTION FILE NO:
)
v. )
)
, )
)
Defendant. )
)

NOTICE OF ELECTION TO BUY ALL THE INTERESTS OF COTENANTS

COMES NOW [name of party], by his/her attorney [name of attorney], and elects to buy
all the interests of cotenants in the action that requested partition by sale.

This day of , 20

Attorney for Petitioner

State Bar No.

Address

Telephone Number
EXHIBIT 4: 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
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; owners contact information; description of property condition and physical
improvements.

(e) Effect of Failure to File. If a return is not filed, the previous years 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 years 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 years return
would not apply.

1.3 Assessment of Property

(a) General Assessment Level. Property is assessed at 40% of its fair market value.1,2

(b) Preferential Assessment Programs.

1
O.C.G.A. 48-5-20 .
2
O.C.G.A. 48-5-7.
(a) 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 propertys fair market and
assessed values are sent to taxpayers.1011

(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.

Section 2 Tax Sales

Georgia law provides two procedures for the sale of property that is the subject of

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.
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 sheriffs sales are advertised in the applicable county. Qualifications for
official newspapers are set forth in Section 9-13-142 of the Georgia Code.

(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
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.
22
O.C.G.A. 48-3-21.
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 sheriffs 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

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.
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

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

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

(i.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 sheriffs 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

2.3 Judicial Tax Sales (Ad Valorem Tax Foreclosures)36

The judicial tax sale process may be used by either the county or, with respect to
33
Id. 44.
34
Id. 48.
35
Id. 47.
36
O.C.G.A. 48-4-75-81.
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 property,
notice of the sale shall be advertised, and the sale shall be conducted, in accordance with the
requirements for sheriffs sales.46 The sale cannot occur earlier than 45 days following issuance
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.
46
Id. 48-4-80; see O.C.G.A. 9-13-160 thru178 for conducting sheriffs sales; see O.C.G.A. 9-13-140
thru142 for advertising sheriffs sales.
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

47
Id. 80
48
O.C.G.A. 48-8-8
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
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-facts
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).1,2

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 principals 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.

Two adults must witness a financial power of attorney, and at least one of the witnesses

1
Ga. Jur. 15:1.
2
Ga. Jur. 15:2.
3
O.C.G.A. 10-6-6(a) (2015).
4
Ga. Jur. 15:3.
5
O.C.G.A. 10-6-141.
6
O.C.G.A. 10-6-140.
cannot be the principals 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 principals 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 principals 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 principals 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.
EXHIBIT 1: STATUTORY FORM OF FINANCIAL POWERS OF ATTORNEY 11

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 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
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 Principals
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.

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]


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)
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 Principals 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 Principals
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
Principals 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 Principals 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)
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]


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)
The Georgia Heirs Property Law Center, Inc.

1100 Peachtree Street, Suite 2800


Atlanta, Georgia 30309-4530
Phone 404-532-6880
www.GaAppleseed.org/initiatives/heir