What is year’s support?
“Year’s support” is a right to inherit property. The entitlement to year’s support accrues upon the death of a spouse or the parent of a minor child. It is the right to inherit a portion of the deceased individual’s estate, regardless what is written in his or her will and (with some exceptions) regardless what debts he or she may have owed during life.
When a year’s support petition is granted by the probate court, the order effectively means that property passes from the estate of the deceased a surviving spouse and/or minor children. “Property” can include, of course, real estate, but also cash, stocks, bonds, personal belongings, automobiles, and any other thing that a person can own.
Who is entitled to year’s support?
As stated, a surviving spouse or minor child is entitled to receive year’s support from an estate if they apply within two years of the decedent’s death. Even if such a person is entitled to year’s support at the time of the death, the right can be lost. If a surviving spouse remarries or dies before petitioning for year’s support, the right vanishes. Likewise, if a minor child dies or attains the age of majority, the right neither passes to his/her estate, nor does it persist past the age of eighteen.
How much of the estate?
This depends. When a surviving spouse or child files for year’s support, he or she is entitled to receive, from the estate, at least as much as is required to support and maintain him or her for a period of 12 months.
Obviously, this amount will be different for different individuals. Year’s support for an elderly heiress battling cancer would be much greater than for a healthy, blue-collar twenty-five year old. The probate court determines how much an individual requires to support him or herself for twelve months.
What if I ask for more than a year’s support?
You may get it.
Very frequently, your attorney will advise you to petition for the entire estate as year’s support. The reason is that the probate court will not look into how much you need in 12 months’ support unless an objection is filed to your petition.
Year’s support can thus become a lot like probate (i.e., the process of getting a court order allowing an estate to be administered) provided that no heir or creditor files an objection to the petition.
Okay, what if an objection is filed?
The primary objection that an heir or creditor will file to a petition for year's support is that the petition asks for too much property from the estate.
Hire a lawyer if an objection is filed to your year's support petition. The objection will trigger a trial on the question of how much money and property you require to keep yourself up in your established manner of living for a year. That inquiry is an evidence-intensive trial that should not be undertaken without legal counsel. Often, an early settlement of the question will avoid the need for a trial, but experienced estate counsel such as the Law Offices of Tanner Pittman, LLC, can help guide you to an advantageous settlement..
What does a year’s support order do to debts in the estate?
Understanding this requires understanding the following: heirs are not liable for the debts of an estate. For example, if a husband dies owing tens of thousands in credit card debt, in Georgia, a wife does not become liable for that debt unless she was a co-signer on it.
However, in this example, the husband’s estate is liable for the debt. When we say that an order of year’s support is “preferred” before all debts of the decedent, we are saying that year’s support can cause property to leave the estate free and clear of the decedent’s debts (with a major exception, discussed below).
Let’s return to our example. A husband has died, owing tens of thousands (let’s say $50,000) in credit card debt. Suppose that the husband also owned some farmland free and clear of any mortgages worth $30,000. Nothing else passed into his estate.
Suppose further that his surviving wife properly files a petition for year’s support, asking the court to give her the farmland. She makes sure that all of the credit card companies are served with a copy of the petition. If none of the credit card companies object within the short time allowed by law, they lose their right to have a share in the estate, and the wife will receive the farmland free and clear of the estate’s debts.
We see then that year’s support is a powerful tool for avoiding an estate’s debts if creditors fail (as they frequently do) to properly respond to the petition.
What about mortgages?
Mortgages are an exception. In Georgia, “mortgages” on real estate are typically not true mortgages but promissory notes secured by a “deed to secure debt.” Deeds to secure debt are property held by the lender and cannot be avoided by a petition for year’s support.
Similarly, even where there is no deed to secure debt, a true mortgage cannot be avoided, provided it is a true purchase-money mortgage. The purchase loan on an automobile cannot be extinguished, for example, but the title loan can.
Are there any other advantages to filing a year’s support petition?
By virtue of our having put this question as a bold heading on this page, you may suppose the answer is “yes.” You would be right.
Property taxes: Real property taxes for one year and outstanding tax liens for real property taxes on all real estate set aside as year’s support are “divested.” The petitioner takes all successfully petitioned-for real property free and clear of property taxes for at least one year. Almost all Georgia counties take the position that this holds true even if a surviving spouse petitions for the decedent’s share of a home that was jointly owned.
Avoid disinheritance: Year’s support is available even if a surviving spouse or minor child wasn’t included in the decedent’s will. Be sure to consult with a lawyer to ensure that nothing is done during probate of the will to void the right to year’s support.
A valid deed: Receipt of real estate via year’s support results in the probate court’s recording of a year’s support certificate in the county deed room. This certificate effectively conveys the property as well as any deed would.
Avoidance of problems with intestacy: Almost all families desire the property of a deceased spouse to go to the surviving spouse, and then to the children after the latter of the two spouses to die. But this is not what happens if the decedent didn’t write a will. Under Georgia’s laws of intestacy (the law that applies when there’s no will), the surviving spouse and children share in the decedent’s estate. Imagine trying to sell your house with your minor children on the deed, and you will see what a problem this can be. As stated above, a successful year’s support petition including the real property will avoid this problem.
“Year’s support” is a right to inherit property. The entitlement to year’s support accrues upon the death of a spouse or the parent of a minor child. It is the right to inherit a portion of the deceased individual’s estate, regardless what is written in his or her will and (with some exceptions) regardless what debts he or she may have owed during life.
When a year’s support petition is granted by the probate court, the order effectively means that property passes from the estate of the deceased a surviving spouse and/or minor children. “Property” can include, of course, real estate, but also cash, stocks, bonds, personal belongings, automobiles, and any other thing that a person can own.
Who is entitled to year’s support?
As stated, a surviving spouse or minor child is entitled to receive year’s support from an estate if they apply within two years of the decedent’s death. Even if such a person is entitled to year’s support at the time of the death, the right can be lost. If a surviving spouse remarries or dies before petitioning for year’s support, the right vanishes. Likewise, if a minor child dies or attains the age of majority, the right neither passes to his/her estate, nor does it persist past the age of eighteen.
How much of the estate?
This depends. When a surviving spouse or child files for year’s support, he or she is entitled to receive, from the estate, at least as much as is required to support and maintain him or her for a period of 12 months.
Obviously, this amount will be different for different individuals. Year’s support for an elderly heiress battling cancer would be much greater than for a healthy, blue-collar twenty-five year old. The probate court determines how much an individual requires to support him or herself for twelve months.
What if I ask for more than a year’s support?
You may get it.
Very frequently, your attorney will advise you to petition for the entire estate as year’s support. The reason is that the probate court will not look into how much you need in 12 months’ support unless an objection is filed to your petition.
Year’s support can thus become a lot like probate (i.e., the process of getting a court order allowing an estate to be administered) provided that no heir or creditor files an objection to the petition.
Okay, what if an objection is filed?
The primary objection that an heir or creditor will file to a petition for year's support is that the petition asks for too much property from the estate.
Hire a lawyer if an objection is filed to your year's support petition. The objection will trigger a trial on the question of how much money and property you require to keep yourself up in your established manner of living for a year. That inquiry is an evidence-intensive trial that should not be undertaken without legal counsel. Often, an early settlement of the question will avoid the need for a trial, but experienced estate counsel such as the Law Offices of Tanner Pittman, LLC, can help guide you to an advantageous settlement..
What does a year’s support order do to debts in the estate?
Understanding this requires understanding the following: heirs are not liable for the debts of an estate. For example, if a husband dies owing tens of thousands in credit card debt, in Georgia, a wife does not become liable for that debt unless she was a co-signer on it.
However, in this example, the husband’s estate is liable for the debt. When we say that an order of year’s support is “preferred” before all debts of the decedent, we are saying that year’s support can cause property to leave the estate free and clear of the decedent’s debts (with a major exception, discussed below).
Let’s return to our example. A husband has died, owing tens of thousands (let’s say $50,000) in credit card debt. Suppose that the husband also owned some farmland free and clear of any mortgages worth $30,000. Nothing else passed into his estate.
Suppose further that his surviving wife properly files a petition for year’s support, asking the court to give her the farmland. She makes sure that all of the credit card companies are served with a copy of the petition. If none of the credit card companies object within the short time allowed by law, they lose their right to have a share in the estate, and the wife will receive the farmland free and clear of the estate’s debts.
We see then that year’s support is a powerful tool for avoiding an estate’s debts if creditors fail (as they frequently do) to properly respond to the petition.
What about mortgages?
Mortgages are an exception. In Georgia, “mortgages” on real estate are typically not true mortgages but promissory notes secured by a “deed to secure debt.” Deeds to secure debt are property held by the lender and cannot be avoided by a petition for year’s support.
Similarly, even where there is no deed to secure debt, a true mortgage cannot be avoided, provided it is a true purchase-money mortgage. The purchase loan on an automobile cannot be extinguished, for example, but the title loan can.
Are there any other advantages to filing a year’s support petition?
By virtue of our having put this question as a bold heading on this page, you may suppose the answer is “yes.” You would be right.
Property taxes: Real property taxes for one year and outstanding tax liens for real property taxes on all real estate set aside as year’s support are “divested.” The petitioner takes all successfully petitioned-for real property free and clear of property taxes for at least one year. Almost all Georgia counties take the position that this holds true even if a surviving spouse petitions for the decedent’s share of a home that was jointly owned.
Avoid disinheritance: Year’s support is available even if a surviving spouse or minor child wasn’t included in the decedent’s will. Be sure to consult with a lawyer to ensure that nothing is done during probate of the will to void the right to year’s support.
A valid deed: Receipt of real estate via year’s support results in the probate court’s recording of a year’s support certificate in the county deed room. This certificate effectively conveys the property as well as any deed would.
Avoidance of problems with intestacy: Almost all families desire the property of a deceased spouse to go to the surviving spouse, and then to the children after the latter of the two spouses to die. But this is not what happens if the decedent didn’t write a will. Under Georgia’s laws of intestacy (the law that applies when there’s no will), the surviving spouse and children share in the decedent’s estate. Imagine trying to sell your house with your minor children on the deed, and you will see what a problem this can be. As stated above, a successful year’s support petition including the real property will avoid this problem.
