Expansion of Georgia Probate Court Jurisdiction
As of January 1, 2021, new laws took effect that make sweeping changes to Georgia’s probate and trust codes. For those involved in trust and estate litigation, perhaps the most significant change is the expansion of probate court subject matter jurisdiction in certain counties to include actions concerning trusts, trustees and trust directors, as well as disputes over the exercise of powers of attorney. O.C.G.A. § 15-9-127. Although superior courts retain concurrent jurisdiction, this change means that most disputes involving the validity of trusts, and claims of breach of fiduciary duty by trustees, can now be brought in probate court rather than superior court.
Article Six Probate Courts
Although some changes in the new laws apply to all Georgia probate courts, the addition of jurisdiction over trusts applies only to Article Six probate courts. Article Six probate courts are those in counties with a population of more than 90,000 whose elected probate judge is a lawyer with seven years of experience. Georgia now has at least 25 Article Six probate courts covering the populations of most of metro Atlanta, as well as Dalton, Gainesville, Columbus, Macon, Savannah, Albany and Valdosta. Approximately two-thirds of Georgia’s population live in counties with Article Six probate courts.
The expansion of probate court jurisdiction has been a decades-long trend in Georgia law. Well-planned estates often involve the use of multiple trusts both in the decedent’s will and outside the will. Disputes over administration of the decedent’s estate often involve alleged misconduct by the trustee of trusts created or funded as a result of the decedent’s death, as well as misconduct by the estate’s personal representative, who is often the same person. Under prior law, trust disputes had to brought in superior court, but the dispute over the probate estate administration had to brought in probate court, creating many challenges for efficient dispute resolution. It is certainly logical to consolidate jurisdiction involving disputes over the decedent’s property in one court.
Are Georgia’s Article Six Probate Courts Ready?
The practical problem, however, is that Georgia’s Article Six probate courts are for the most part ill equipped to handle this expanded jurisdiction. For example, Fulton County, with a population of more than 1 million, has 20 superior court judges, but only one elected probate judge. Under current law, each county has one probate judge, including Taliaferro County, with a population of only 1,717. It seems that it will be difficult to obtain the benefit of adding trust jurisdiction to the work of Article Six probate courts in highly populated counties without adding more judges to handle the work.