FIRST DIVISION BROWN, C. J., BARNES, P. J., and WATKINS, J.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
September 24, 2025
In the Court of Appeals of Georgia A25A1205. IN RE ESTATE OF TRAVIS.
BARNES, Presiding Judge.
A probate court granted a brother’s request that he be reinstated as the co-
executor of his father’s estate after he had previously renounced that office in writing.
On appeal from that judgment, the brother’s sister, now sole executor, argues that the
probate court erred because the relevant statute, OCGA § 53-6-12, allows a nominated
executor who has declined the office to qualify at a later time only “to fill a vacancy,”
which never occurred here. We agree and reverse.
OCGA § 15-9-30 (a) (2) provides that “[p]robate courts have authority, unless
otherwise provided by law, to exercise original, exclusive, and general jurisdiction”
over matters including “[t]he granting of letters testamentary and of administration and the repeal or revocation of the same.” “Generally, a probate court has broad
discretion in the disqualifying of a named executor.” In Re Estate of Farkas, 325 Ga.
App. 477, 478 (2) (753 SE2d 137) (2013); see also OCGA § 53-7-55 (a) (authorizing
a probate court, whether on petition or for “good cause,” “to revoke the letters of a
personal representative or impose other sanctions”).”We review a probate court’s
determination regarding whether one is fit to serve as an executor for an abuse of
discretion.” Id.
Thus viewed in favor of the probate court’s judgment, the record shows that
Emory Travis, a widower, died on March 1, 2024. On June 10, 2024, Donna Lisa
Butler (“Lisa”), the decedent’s daughter, filed a petition to probate the decedent’s
will in solemn form. The will left the family house to the decedent’s son, David Troy
Travis (“Troy”), and nominated Lisa and Troy to serve as co-executors. In addition
to the will, Lisa’s petition attached Troy’s written renunciation of his nomination.
Troy also agreed in writing to the immediate admission of the will into probate. The
will was admitted to probate that morning, and Lisa was issued letters testamentary
the following day.
2 In September 2024, Lisa entered into a contract to sell the family home.
According to Troy, Lisa told him that they would split the proceeds of the house sale
“fifty-fifty” even though the will gave the house to Troy outright. Troy filed
objections with the probate court, asking to revoke his renunciation and to be named
co-executor. After a hearing, a transcript of which is not included in the appellate
record, the probate court stayed the house sale and asked for briefing on the issue of
Troy’s revocation of his renunciation. In what it called a “final order,” the probate
court then held that OCGA § 53-6-12 “allows a nominated executor to decline in
writing the right to serve an executor but does not preclude the nominated executor
from qualifying at a later time to serve as executor.” The court therefore authorized
Troy to take his oath as executor.
On appeal from this judgment, Lisa argues that Troy cannot serve as executor
because the office was never vacant, which is a precondition for a previously excused
executor for returning to that office. For his part, Troy argues that we lack jurisdiction
over the appeal because the probate court failed to issue a certificate of immediate
review concerning its order.
1. We first inquire into our own jurisdiction.
3 OCGA § 5-6-34 governs what trial court orders may be reviewed immediately by an appellate court. Specifically, subsection (a) of the statute lists the trial court judgments and orders that may be appealed immediately. This list includes all final judgments where the case is no longer pending in the court below [except as provided in OCGA § 5-6-35].
(Citation and punctuation omitted.) Duke v. State, 306 Ga. 171, 172 (1) (829 SE2d 348)
(2019). The list in OCGA § 5-6-34 (a) includes “specific types of trial court rulings
that the General Assembly has deemed important enough to the case, or dispositive
enough of the case, to warrant an immediate appeal, even though such rulings are
often interlocutory rather than final judgments.” (Citation and punctuation omitted.)
Rivera v. Washington, 298 Ga. 770, 773 (784 SE2d 775) (2016).
As a complement to the provision of OCGA § 5-6-34 (a) (9), which authorizes
a direct appeal from “[a]ll judgments or orders sustaining motions to dismiss a caveat
to the probate of a will,” this Court has long held that an order granting a petition to
probate a will and appointing an executor is a final and appealable judgment. See In Re
Estate of Martin, — Ga. App. —, — (1) (918 SE2d 453) (2025) (an order admitting a
will to probate and issuing letters testamentary was a final judgment); In re Estate of
Jeffcoat, 361 Ga. App. 828, 829 (1) (865 SE2d 661) (2021) (addressing whether a
4 probate court erred in appointing a county administrator rather than the nominated
person as the executor of a will); In re Estate of Zeigler, 273 Ga. App. 269, 269 (614
SE2d 799) (2005) (addressing whether a probate court erred in removing an executor
and in requiring her to post a bond); McConnell v. Moore, 232 Ga. App. 700, 702 (503
SE2d 593) (1998) (an order admitting a will to probate and appointing an executor was
a final order); Dismer v. Luke, 228 Ga.App. 638, 639 (1) (492 SE2d 562) (1997) (order
granting petition to probate will and admitting the will to probate which implicitly
denied the caveat was a final judgment). Compare In re Bruni, 369 Ga. App. 488, 492
(7) (893 SE2d 862) (2023) (dismissing appeal from order appointing an emergency
conservator as “not collateral to the [underlying] action for the appointment of a
conservator”); In re Estate of Reece, 360 Ga. App. 364, 365-366 (861 SE2d 169) (2021)
(an order resolving an estate’s motion to approve attorney fees was not a final order
for purposes of OCGA § 5-6-34 (a) because the administration of the estate was not
complete).
Here, as in many probate cases, the issue of the executorship looms large over
the estate’s disposition. Troy has suggested, for example, that Lisa, now sole executor,
is moving forward to evict him from the family home, with Troy seeking to prevent
5 that result by rescinding his declination. Whatever the ultimate outcome here, we hold
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FIRST DIVISION BROWN, C. J., BARNES, P. J., and WATKINS, J.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
September 24, 2025
In the Court of Appeals of Georgia A25A1205. IN RE ESTATE OF TRAVIS.
BARNES, Presiding Judge.
A probate court granted a brother’s request that he be reinstated as the co-
executor of his father’s estate after he had previously renounced that office in writing.
On appeal from that judgment, the brother’s sister, now sole executor, argues that the
probate court erred because the relevant statute, OCGA § 53-6-12, allows a nominated
executor who has declined the office to qualify at a later time only “to fill a vacancy,”
which never occurred here. We agree and reverse.
OCGA § 15-9-30 (a) (2) provides that “[p]robate courts have authority, unless
otherwise provided by law, to exercise original, exclusive, and general jurisdiction”
over matters including “[t]he granting of letters testamentary and of administration and the repeal or revocation of the same.” “Generally, a probate court has broad
discretion in the disqualifying of a named executor.” In Re Estate of Farkas, 325 Ga.
App. 477, 478 (2) (753 SE2d 137) (2013); see also OCGA § 53-7-55 (a) (authorizing
a probate court, whether on petition or for “good cause,” “to revoke the letters of a
personal representative or impose other sanctions”).”We review a probate court’s
determination regarding whether one is fit to serve as an executor for an abuse of
discretion.” Id.
Thus viewed in favor of the probate court’s judgment, the record shows that
Emory Travis, a widower, died on March 1, 2024. On June 10, 2024, Donna Lisa
Butler (“Lisa”), the decedent’s daughter, filed a petition to probate the decedent’s
will in solemn form. The will left the family house to the decedent’s son, David Troy
Travis (“Troy”), and nominated Lisa and Troy to serve as co-executors. In addition
to the will, Lisa’s petition attached Troy’s written renunciation of his nomination.
Troy also agreed in writing to the immediate admission of the will into probate. The
will was admitted to probate that morning, and Lisa was issued letters testamentary
the following day.
2 In September 2024, Lisa entered into a contract to sell the family home.
According to Troy, Lisa told him that they would split the proceeds of the house sale
“fifty-fifty” even though the will gave the house to Troy outright. Troy filed
objections with the probate court, asking to revoke his renunciation and to be named
co-executor. After a hearing, a transcript of which is not included in the appellate
record, the probate court stayed the house sale and asked for briefing on the issue of
Troy’s revocation of his renunciation. In what it called a “final order,” the probate
court then held that OCGA § 53-6-12 “allows a nominated executor to decline in
writing the right to serve an executor but does not preclude the nominated executor
from qualifying at a later time to serve as executor.” The court therefore authorized
Troy to take his oath as executor.
On appeal from this judgment, Lisa argues that Troy cannot serve as executor
because the office was never vacant, which is a precondition for a previously excused
executor for returning to that office. For his part, Troy argues that we lack jurisdiction
over the appeal because the probate court failed to issue a certificate of immediate
review concerning its order.
1. We first inquire into our own jurisdiction.
3 OCGA § 5-6-34 governs what trial court orders may be reviewed immediately by an appellate court. Specifically, subsection (a) of the statute lists the trial court judgments and orders that may be appealed immediately. This list includes all final judgments where the case is no longer pending in the court below [except as provided in OCGA § 5-6-35].
(Citation and punctuation omitted.) Duke v. State, 306 Ga. 171, 172 (1) (829 SE2d 348)
(2019). The list in OCGA § 5-6-34 (a) includes “specific types of trial court rulings
that the General Assembly has deemed important enough to the case, or dispositive
enough of the case, to warrant an immediate appeal, even though such rulings are
often interlocutory rather than final judgments.” (Citation and punctuation omitted.)
Rivera v. Washington, 298 Ga. 770, 773 (784 SE2d 775) (2016).
As a complement to the provision of OCGA § 5-6-34 (a) (9), which authorizes
a direct appeal from “[a]ll judgments or orders sustaining motions to dismiss a caveat
to the probate of a will,” this Court has long held that an order granting a petition to
probate a will and appointing an executor is a final and appealable judgment. See In Re
Estate of Martin, — Ga. App. —, — (1) (918 SE2d 453) (2025) (an order admitting a
will to probate and issuing letters testamentary was a final judgment); In re Estate of
Jeffcoat, 361 Ga. App. 828, 829 (1) (865 SE2d 661) (2021) (addressing whether a
4 probate court erred in appointing a county administrator rather than the nominated
person as the executor of a will); In re Estate of Zeigler, 273 Ga. App. 269, 269 (614
SE2d 799) (2005) (addressing whether a probate court erred in removing an executor
and in requiring her to post a bond); McConnell v. Moore, 232 Ga. App. 700, 702 (503
SE2d 593) (1998) (an order admitting a will to probate and appointing an executor was
a final order); Dismer v. Luke, 228 Ga.App. 638, 639 (1) (492 SE2d 562) (1997) (order
granting petition to probate will and admitting the will to probate which implicitly
denied the caveat was a final judgment). Compare In re Bruni, 369 Ga. App. 488, 492
(7) (893 SE2d 862) (2023) (dismissing appeal from order appointing an emergency
conservator as “not collateral to the [underlying] action for the appointment of a
conservator”); In re Estate of Reece, 360 Ga. App. 364, 365-366 (861 SE2d 169) (2021)
(an order resolving an estate’s motion to approve attorney fees was not a final order
for purposes of OCGA § 5-6-34 (a) because the administration of the estate was not
complete).
Here, as in many probate cases, the issue of the executorship looms large over
the estate’s disposition. Troy has suggested, for example, that Lisa, now sole executor,
is moving forward to evict him from the family home, with Troy seeking to prevent
5 that result by rescinding his declination. Whatever the ultimate outcome here, we hold
that orders such as the one before us, which involves the appointment or removal of
an executor, are final and appealable judgments for purposes of OCGA § 5-6-34 (a).
2. On the merits, we begin with the text of OCGA § 53-6-12:
A nominated executor may decline in writing the right to serve as executor, but this shall not preclude the nominated executor from qualifying at a later time to serve as executor or administrator with the will annexed to fill a vacancy.1
(Emphasis supplied.) OCGA § 53-6-12 replaced the former OCGA § 53-6-71, which
barred any recantation of a renunciation,2 and the new statute envisions circumstances
where a renunciation can be undone. But “[w]here the language of a statute is plain
and unambiguous, judicial construction is not only unnecessary but forbidden.” Six
Flags Over Georgia v. Kull, 276 Ga. 210, 211 (576 SE2d 880) (2003).
1 OCGA § 53-1-2 (2) defines an “[a]dministrator with the will annexed” as “any person, other than an executor, appointed and qualified to administer a testate estate, including a testate estate already partially administered and from any cause unrepresented.” 2 Former OCGA § 53-6-71 provided that a person who renounces a right to serve as executrix “may not afterwards relieve himself from the effect of renunciation.” 6 It is undisputed that Lisa was named sole executor in accordance with Troy’s
written renunciation and that she never abandoned or was forced out of that office. In
the statute’s terms, then, no “vacancy” in that office occurred at any time after the
renunciation, with the result that the probate court was not authorized to qualify Troy
“at a later time.” OCGA § 53-6-12.
Given that the office of executor has never been vacant, Troy’s only recourse
in light of his renunciation and the plain terms of OCGA § 53-6-12 was to petition to
remove Lisa as co-executor, as (for example) on the ground that when she induced
him to renounce his nomination, she ignored the plain terms of the will, which left the
house to him outright. The fact remains, however, that Troy could become executor
only if that office became vacant, whether by action of the probate court or some other
circumstance. Unless and until such a “vacancy” occurs, Troy’s renunciation of his
right to be co-executor must remain in effect. Nor does the absence of a transcript
change this result, where an undisputed fact – here, Lisa’s uninterrupted status as
executor – was ignored by the probate court. See State v. Franklin, 318 Ga. 39, 39 (1)
(897 SE2d 432) (2024) (where some or all of the material facts are undisputed, a
reviewing court may “properly take notice of the undisputed facts – even if the trial
7 court did not – without interfering with the prerogative of the trial court to resolve
disputes of material fact”) (citation and punctuation omitted).
Because Troy is not currently entitled to assume the office of co-executor, we
reverse the order of the probate court authorizing him to take the oath of that office.
Judgment reversed. Brown, C. J., and Watkins, J., concur.