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Publication Date

12-1980

Document Type

Special Contribution

Abstract

Under Georgia law when one dies intestate, the title to the decedent's real property immediately descends to his heirs at law and the title to the personalty vests in the administrator of the estate for the benefit of the creditors and heirs. Title to all property passing by will, both realty and personalty, passes to the executor until he assents to the devise or legacy., During the course of the administration of an estate, it often becomes necessary to sell some of the assets of the estate to satisfy debts, taxes, administration expenses and general pecuniary legacies. Georgia law provides the machinery under which these sales may be made and gives the administrator the power to divest the heirs at law of whatever title they may have in the property.

Several concerns are at stake in the evaluation of any statutory scheme dealing with sales and conveyances by the personal representative. Adequate protection to the heirs, creditors and others who may have an interest in the estate property must be provided against any possible misuse of the property by the personal representative; the personal representative must be given sufficient power and latitude so that he is not constrained from acting in the best interest of the heirs and creditors; the costs of administration must be minimized; and the probate courts should not be burdened with unnecessary work.

This article will analyze the legislative machinery in Georgia governing sales by the personal representative. Attention will also be devoted to the enforcement of installment land contracts following the decedent vendor's death. It will be seen that, unless the will includes a power of sale, the personal representative generally cannot sell realty or personalty without probate court approval. The thesis will be developed that this constraint is wholly outmoded and that the burden of its time consuming and costly process far outweighs any protection it might afford.

Georgia law recognizes the installment land contract (bond for title) as a means for the long-term financing of the purchase of land. This arrangement binds the seller in a penal sum to make good title to the purchaser. It will be seen that the bond for title is virtually obsolete in Georgia, and that the statutory treatment of a bond for title as an entity separate from the contract to sell land serves no purpose.

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