Probate Court Involvement in Georgia Wrongful Death Cases

The probate court does not try a wrongful death claim. It comes in for three narrower jobs: appointing a personal representative for the estate’s claims, handling conservatorships for minors, and approving certain settlements for minors when no lawsuit is pending. A family that only has adult beneficiaries and no estate claim can file a § 51-4-2 action without opening probate. Waiting for probate to finish does not stop the family’s two-year clock.

Does an unopened estate pause the deadline?

No, not for the family’s claim. O.C.G.A. § 9-3-92 says the time between death and the start of representation “shall not be counted against his estate”. The claim of a spouse, child, or parent is not the estate’s. That protection helps the estate’s claim for the injury and the expenses. It does not help the family, as explained on the wrongful death limitation page.

Job one: a personal representative

Three kinds of claim need someone appointed.

• The estate’s survival action under § 9-2-41.
• The claim for funeral, medical, and other necessary expenses under § 51-4-5(b).
• The wrongful death claim itself under § 51-4-5(a), when no spouse, child, or parent can bring it.

If the person left a will, the named executor is a starting point. If not, the court appoints an administrator. O.C.G.A. § 53-6-30(a) also allows temporary letters “at any time and without service or notice to anyone” on an unrepresented estate, which gives a faster way to get someone in place, though a temporary administrator’s powers should be checked against what the case requires.

Family disagreement about who should serve can slow that process. Starting early gives more room, particularly because the estate’s claim count begins before the appointment, even with the § 9-3-92 protection.

Job two: protecting a minor’s money

Conservatorship is the probate court’s own function. Under § 29-3-1(b), a natural guardian or next friend “may not receive the personal property of the minor” until becoming a legally qualified conservator, with an exception when the total value of the minor’s personal property is $25,000 or less.

An older $15,000 figure came from a sentence in § 51-4-2(d)(1) that was removed in House Bill 620 in 2022.

Job three: approving settlements

Section 29-3-3 sets out which court approves a minor’s settlement. For a settlement that requires approval, the court is “the probate court if no legal action has been initiated”, and otherwise “the court in which the legal action is pending”, which has exclusive jurisdiction subject to subsection (g). So a case in state or superior court has its minor’s approval there, and the probate court is not always the forum.

Stage	Who approves a minor's settlement that needs approval
No suit filed	Probate court
Suit pending	The court where it is pending
Suit ended without retained jurisdiction	Probate court, § 29-3-3(g)(3)

Whether approval is needed depends on the gross and net settlement. The bands are in the distribution article. Note the separate rule for a surviving spouse, who “may release the alleged wrongdoer” under § 51-4-2(c) without any order of court and stays accountable for the children’s shares.

Section 29-3-3(f) leaves a hearing to the discretion of the court in which the action is pending, and says one is not required “if compliance with such requirements is evident from the record”.

When one person has two roles

A surviving spouse can be both a wrongful death plaintiff and the estate’s administrator. The roles pull in different directions: the spouse’s own share comes from the wrongful death side, while creditors and other heirs look to the estate side. A settlement allocation made by someone in both roles is the place where a later challenge would focus. O.C.G.A. § 53-7-1(a) calls a personal representative “a fiduciary”, so documenting why an allocation was reasonable is more than a formality.

Where the wrongful death suit is actually filed

The suit proceeds in a court with jurisdiction over tort claims, in the proper county under venue rules, and not in probate. The procedural steps for filing cover that. A guardian acting for a minor in place of a surviving spouse may have an additional forum question: Blackmon v. Tenet Healthsystem Spalding points such cases to superior court because the relief rests on equity.

Sources

• Official Code of Georgia Annotated, November 2022 public release: §§ 9-2-41, 9-3-92, 29-3-1, 29-3-3, 51-4-2, 51-4-5, 53-6-30, 53-7-1
• House Bill 620, as passed (2022)
• Blackmon v. Tenet Healthsystem Spalding, 284 Ga. 369

This page was last reviewed in November 2026 for general information. Laws and court decisions can change after that date. It is not legal advice and does not create an attorney-client relationship.