GA Code § 44-13-4 (2021)
2021 Georgia Code|Title 44 - Property|Chapter 13 - Exemptions From Levy and Sale|Article 1 - Constitutional Exemptions|Part 1 - In General|§ 44-13-4. Application for Exemptions; to Whom Made; Contents; Schedule of Property and List of Creditors; Effect of Failure to Comply; Survey

  Each person seeking the benefit of the exemptions provided in this article shall apply by petition to the judge of the probate court of the county in which he resides or in which the debtor's minor children or dependents reside when the application is made for their benefit. The petition shall state:   The debtor for whom the exemption is claimed;   The names and ages of minor children and dependents of the debtor; and   Out of what and whose property exemptions are claimed.  The petition shall comply with all the requirements of the laws for the setting apart and valuation of the exemptions provided by this article.      The applicant shall accompany his petition with a schedule containing a minute and accurate description of all real and personal property belonging to the person from whose estate the exemption is to be made so that persons interested may know exactly what is exempted and what is not and also with a list of his creditors and their post office addresses, if known, which must be sworn to by the applicant or his agent.   For a failure to comply with this Code section either in the original petition which may be amended at any time prior to the final proceedings before the judge of the probate court or in the amended petition, the judge shall dismiss the petition.   The applicant shall apply to the judge of the probate court for an order to the county surveyor or, if there is none, to some other surveyor to lay off any real property of the applicant and to make a plat of the same, which order the judge shall issue at once and give to the applicant.     (Ga. L. 1868, p. 27, § 2; Code 1873, § 2003; Ga. L. 1876, p. 48, § 1; Ga. L. 1878-79, p. 99, § 1; Code 1882, § 2003; Civil Code 1895, § 2828; Civil Code 1910, § 3378; Code 1933, § 51-201; Code 1981, §44-13-5; Ga. L. 1982, p. 3, § 44; Code 1981, §44-13-4, as redesignated by Ga. L. 1983, p. 1170, § 2.)   Cross references.   - Appointment of person to perform duties of county surveyor when no such office exists in county, § 36-7-13.   Editor's notes.   - Ga. L. 1983, p. 1170, § 2, effective July 1, 1983, redesignated former Code Section 44-13-5 as this Code section. The 1983 Act also redesignated former Code Section 44-13-4, relating to supplementation of exemption, as present Code Section 44-13-3.   JUDICIAL DECISIONS   List of property.    - Whether all or only a part of the estate is to be exempt, the schedule must contain a list of all the property owned by the decedent. Blackstone v. Kritzer, 120 Ga. 78, 47 S.E. 585 (1904).   No schedule.    - Where there is no schedule of property, the homestead is void. Peterson v. Calhoun, 135 Ga. 103, 68 S.E. 1022 (1910).   Schedule amendable.    - The schedule is a part of the pleadings, and is amendable at any time prior to judgment. Davis v. James, 145 Ga. 325, 89 S.E. 203 (1916).   Property included by mistake.    - A petition for homestead may be amended by adding to the schedule something which has been omitted, but not by striking therefrom any article of property therein set forth. If the applicant has by mistake inserted property belonging not to the applicant but to another, the applicant should dismiss the application and file another one, omitting such articles of property not belonging to the applicant as were in the previous schedule. McWilliams v. Bones, 84 Ga. 199, 10 S.E. 723 (1890); Smith v. Exchange Bank, 25 Ga. App. 278, 103 S.E. 99 (1920).   Sale of article included in schedule.    - The sale by the applicant, after making an application, of an article which the applicant had placed on the schedule, was sufficient to have defeated the application, unless the applicant accounted for the money and delivered up the same for the benefit of creditors. McWilliams v. Bones, 84 Ga. 199, 10 S.E. 723 (1890).   Statutory exemptions inapplicable in federal bankruptcy cases.    - O.C.G.A. §§ 44-13-4(b) and44-13-7 deal with constitutional exemptions from the levy and sale of property, and these statutory provisions simply do not apply in the context of federal bankruptcy cases. Caruthers v. Fleet Fin., Inc., 87 Bankr. 723 (Bankr. N.D. Ga. 1988).   Wife not head of family.    - A wife having children by a former as well as by a present husband cannot be said to be the head of a family, consisting of herself and her minor children by both husbands. Neal v. Sawyer, 62 Ga. 352 (1879).   Widow as head of family and guardian.    - A widow in the character both of the head of a family and the guardian of her minor children, applied for and obtained homestead in the real estate of her husband. The effect of so doing was to obtain a homestead as the head of a family in her own undivided share, and a homestead as the guardian of her minor children in their undivided shares. Fountain v. Hendley, 82 Ga. 616, 9 S.E. 666 (1889).   Wife failing to attach schedule as to personalty.    - Where a wife made an application to the ordinary (now probate judge)for an exemption of realty out of land belonging to the husband, but not praying therein for any exemption of personalty, the exemption of realty, after being duly set apart and approved by the ordinary (now probate judge), was not void because of the applicant's failure to attach to her application a schedule of personal property belonging to the husband. Atwater v. Respess, 97 Ga. 283, 22 S.E. 1000 (1895).   Dependent females.    - O.C.G.A. § 44-13-4 does not contemplate a homestead or exemption for the benefit of dependent females, except in the property of the person upon whom they were dependent. Sutton v. Rosser, 109 Ga. 204, 34 S.E. 346, 77 Am. St. R. 367 (1899).   Showing beneficiaries.    - A petition which stated that the applicant claimed a homestead as head of a family, and then stated of whom that family consisted, was sufficiently explicit in showing who were the beneficiaries for whom the homestead was asked. Roberts v. Cook, 68 Ga. 324 (1882).    A collateral attack on a judgment setting aside a constitutional homestead under O.C.G.A. § 44-13-4 is not allowable, though allowable as to a "short homestead." Gann v. McGee, 19 Ga. App. 13, 90 S.E. 976 (1916).   After-acquired realty.    - Where the head of a family asserts a homestead in personalty, not having any realty at that time, that person does not lose the right to a homestead in realty thereafter acquired. Dickinson v. Haralson, 61 Ga. 526 (1878).    The description of an automobile, in the application for homestead, as "one five-passenger Ford automobile," was sufficient to identify the property. Gann v. McGee, 19 Ga. App. 13, 90 S.E. 976 (1916).   Fixing valuation.    - It is not incumbent on the applicant for a homestead to fix the valuation of the real estate sought to be set apart; this duty devolves upon the surveyor, the surveyor's valuation being subject to review by appraisers. Wood & Bro. v. Collins, 111 Ga. 32, 36 S.E. 423 (1900).   Signature to and verification of petition.    - Where a petition for a homestead was signed by the attorney of the applicant, and verified by the affidavit of the latter, it was not void. Roberts v. Cook, 68 Ga. 324 (1882).   Alleging age of wife.    - Where a homestead was asked for the benefit of a wife and children, a failure to allege the age of the wife did not render the proceeding void. Roberts v. Cook, 68 Ga. 324 (1882).    Approval of the schedule does not operate to set aside, as exempt, property described therein but omitted from that part of the petition stating out of what property the exemption is claimed. Blackstone v. Kritzer, 120 Ga. 78, 47 S.E. 585 (1904).    Proceeding under O.C.G.A. § 44-13-16. - A bankrupt debtor in perfecting an exemption of money, set aside to the debtor in a bankruptcy proceeding, in a proceeding before the ordinary (now probate judge) of the county of residence under the provisions of O.C.G.A. § 44-13-16 must comply with O.C.G.A. § 44-13-4 and §§ 44-13-7 through44-13-9, relating to the schedule to be attached to the application, the notice to be published by the ordinary (now probate judge), and the notice to be given creditors by the applicant or the applicant's agent. Lou Hill Co. v. Bjoralt, 103 Ga. App. 564, 120 S.E.2d 39 (1961).   Presumption that proper order given.    - As against a creditor who was duly served with notice of an application for a homestead, it will, though the homestead proceeding does not so disclose, be presumed that a proper order to the surveyor to lay off and plat the homestead was granted; nor as to such creditor will a homestead so approved be treated as invalid because the plats of two lots composing the same did not purport to be made by the county surveyor and were not sworn to, accompanied by an affidavit as the law requires. Dunagan v. Stadler, 101 Ga. 474, 29 S.E. 440 (1897).   Plats made by other than county surveyor.    - When it is shown that the plats were made by other than the county surveyor, the law will presume there was no county surveyor. Dunagan v. Stadler, 101 Ga. 474, 29 S.E. 440 (1897).   Question for jury.    - The sufficiency of identification of property in an application for homestead is a matter for the consideration of the jury. Gann v. McGee, 19 Ga. App. 13, 90 S.E. 976 (1916).   Appellate review.    - Power to act under O.C.G.A. § 44-13-4 is conferred upon the ordinary (now probate judge) of the county in which the applicant resided; and the ordinary's action must be reviewed by certiorari and not by appeal. Cunningham v. United States Sav. & Loan Co., 109 Ga. 616, 34 S.E. 1024 (1900).    Cited in Sanders v. GMAC, 43 Ga. App. 374, 158 S.E. 646 (1931); Kemp v. Swainsboro Ice & Fuel Co., 47 Ga. App. 99, 169 S.E. 700 (1933); Pass v. Pass, 195 Ga. 155, 23 S.E.2d 697 (1942).   RESEARCH REFERENCES   Am. Jur. 2d.   - 31 Am. Jur. 2d, Exceptions, §§ 16-18, 33, 36-119, 152, 159-161, 164, 177, 186. 40 Am. Jur. 2d, Homesteads, §§ 16, 18, 40 et seq., 78 et seq., 146, 162, 167 et seq.   ALR.   - Estate or interest in real property to which a homestead claim may attach, 74 A.L.R.2d 1355.