Opinion
A22A1275
04-21-2022
IN RE: ESTATE OF EDWARD H. WILLIAMS, DECEASED.
The Court of Appeals hereby passes the following order:
This dispute arises from the probate of the will of Edward H. Williams. Amy Ray and Christine Davis, two of the three co-executors of Williams's estate (the "Estate"), filed a petition for removal of the third co-executor, Glenda Faye Williams, in the Whitfield County Probate Court. The probate court issued an order denying the petition and ordering the three co-executors to finalize the Estate's affairs and file a petition for discharge within 60 days. Ray and Davis filed a motion for new trial, challenging the denial of their petition for removal, which the trial court denied. Ray and Davis then filed the instant direct appeal. We lack jurisdiction.
As a threshold matter, we note that an order of the Whitfield County Probate Court may generally be appealed directly to the Court of Appeals. However, the order must be final. See OCGA § 5-6-34 (a) (1) (appeals generally may be taken from "[a]ll final judgments, that is to say, where the case is no longer pending in the court below"); OCGA § 15-9-123 (a) (the provisions of Chapter 6 of Title 5 apply to probate appeals). Here, the record contains no indication that the Estate has been fully probated or that the co-executors have been discharged. Therefore, Ray and Davis were required to use the interlocutory appeal procedures - including obtaining a certificate of immediate review from the probate court - to obtain review of the order denying their motion for new trial. See OCGA § 5-6-34 (b); In re Estate of Reece, 360 Ga.App. 364, 365-366 (861 S.E.2d 169) (2021).
Under OCGA § 15-9-123 (a), a party in a civil case in "probate court" shall have the right of appeal to an appellate court without first seeking review in superior court. See Ellis v. Johnson, 291 Ga. 127, 128, n.1 (1) (728 S.E.2d 200) (2012). A "probate court" is defined as "a probate court of a county having a population of more than 90, 000 persons according to the United States decennial census of 2010 or any future such census[.]" OCGA § 15-9-120 (2). As of the 2020 census, Whitfield County had a population of 102, 864.
Ray and Davis's failure to comply with the interlocutory appeal procedures deprives us of jurisdiction over this premature direct appeal, which is hereby DISMISSED.