Whenever an execution issued from a probate court is levied upon personal property and a claim to the property or an affidavit of illegality is interposed, it shall be the duty of the sheriff or other levying officer to return the same, together with the execution and all the other papers, to the next term of the superior court of the county from which the execution was issued. If the levy has been made upon realty, the execution, with the claim or illegality papers, shall be returned by the levying officer to the next term of the superior court of the county where the land lies and the issue shall be tried as is provided for the trial of claim and illegality cases.
§ 9-13-99.Return of claim or illegality against execution from probate court
Chapter 13. Executions and Judicial Sales · Article 5. Claims · Last amended 1933 · Last verified July 17, 2026
In one sentenceO.C.G.A. § 9-13-99 sends a claim or affidavit of illegality filed against a probate-court execution to the next term of the superior court — the county that issued the execution for personal property, or the county where the land lies for real property — to be tried under the same procedures as other claim and illegality cases.
Full Text of § 9-13-99
Plain-English Summary
Probate courts issue their own executions, but they are not equipped to try a full-blown contest over property ownership or the legality of an execution. This section routes those disputes up to superior court whenever they arise out of a probate-court execution.
The rule reaches two kinds of challenges: a claim to the property, and an affidavit of illegality — the parallel device under Article 4 that lets a defendant attack the execution itself rather than assert third-party ownership. Whichever one is interposed, the levying officer must return the execution and all the other papers to the next term of the superior court of the county from which the execution issued, if the levy hit personal property.
Real property again follows its own track. If the levy was on realty, the execution and the claim or illegality papers go instead to the next term of the superior court of the county where the land lies. Once the case reaches superior court by either path, it is tried the same way any other claim or illegality case would be — this section only changes where the fight happens, not how.
Frequently Asked Questions
Why can’t a probate court try a claim or illegality dispute over its own execution?
The statute routes both kinds of disputes to superior court instead, reflecting that probate court is not the forum for trying claim and illegality cases.
Where does a claim against a probate-court execution on personal property go?
To the next term of the superior court of the county from which the execution was issued.
Where does it go if the levy was on real estate?
To the next term of the superior court of the county where the land lies, along with the execution and the claim or illegality papers.
Does this section cover affidavits of illegality as well as ownership claims?
Yes. It applies whenever either a claim to the property or an affidavit of illegality is interposed against a probate-court execution.
How is the case tried once it reaches superior court?
Under the same procedures used for other claim and illegality cases, including the jury-trial requirement in Code Section 9-13-100.
Amendment History
Ga. L. 1876, p. 100, § 1; Code 1882, § 3742a; Civil Code 1895, § 4628; Civil Code 1910, § 5174; Code 1933, § 39-908.
Source & verification. Section text and amendment history are
reproduced verbatim from the Official Code of Georgia Annotated, published by the
Official Code of Georgia Annotated, Georgia Code Revision Commission / LexisNexis. Last verified July 17, 2026.
· Official source
Also known as: georgia probate court execution claimillegality affidavit probate court execution georgiasuperior court claim from probate executionclaim against probate court execution georgia