Probate in Solemn Form: Providing Heirs with Notice

Probating a will in solemn form requires providing notice to all of the heirs of the testator (see O.C.G.A.  § 53-5-22). If the heirs’ addresses are known and they are cooperative, then the fastest (and cheapest) way for a petitioner to satisfy notice is by having the heirs sign the “Acknowledgement of Service and Assent to Probate Instanter” form.

Otherwise, as long as the petitioner included the addresses of the heirs in the petition, Georgia probate courts usually handle service of notice by certified mail or personal service (the local sheriff). Service of notice by mail and personal service requires the petitioner to include a copy of the petition and the will for each heir being served.

What happens when an heir’s address is unknown? Although O.C.G.A. § 53-5-22(c) allows notice by publication (in the local newspaper), petitioners cannot jump straight to notice by publication. In Oakley v. Anderson, 235 Ga. 607 (1975), the Georgia Supreme Court said that the petitioner could not simply rely on her own personal knowledge concerning the identity and whereabouts of the heirs—she had to go beyond her own personal knowledge.

In practice, this usually means hiring a private investigator to try to find the whereabouts of the missing heir. If the heir still cannot be found, then the probate court may have the petitioner complete an “Affidavit of Diligent Search” to describe all of the efforts that the petitioner took to locate the missing heir. Then, if the probate court is satisfied with the petitioner’s diligent search efforts, it will allow the petitioner to fulfill notice by publication.