What is This Unique Probate Court Proceeding and When Should It Be Used?
A petition for year’s support is a probate court proceeding unique to Georgia asking the probate court judge to order that property that belonged to the deceased person be set aside for the support of the surviving spouse or minor children of the decedent. Generally, the spouse and/or minor children requests the court to set aside an amount of property sufficient for the support for a twelve-month period. When should it be used? The petition for year’s support is often used when the decedent’s estate has significant debt. The award to the petitioner(s) (the surviving spouse or minor children filing the petition) takes priority over the unsecured debt of the decedent, so the order to award year’s support to be paid to the surviving spouse or minor children can wipe out debt the decedent owed for credit cards, medical bills, etc. and the petitioner will not be required to pay those debts before taking ownership of the decedent’s assets. The award can also provide the petitioner with relief from property taxes for one year. The petitioner can request that the taxing authorities grant relief for the year of the death or the following year. In addition, the petition for year’s support can be used when there is a will that left a small amount, or nothing, to the surviving spouse or minor children. This can be effective when the will left the estate to older adult children from previous marriages, but neglected to leave anything to the current spouse or minor children. Another good use of the petition for year’s support may be when the estate is small. The cost of this type of probate proceeding can be slightly less than a probate or intestate administration. Some things to beware of when deciding whether to file the petition for year’s support are that the petition must be filed within 2 years of the death, and the remarriage of a surviving spouse before the award is granted will terminate the petition. The property the petitioner is seeking to have set aside must be accurately and precisely described, because the probate court order will incorporate the description of the property that is in the petition. In addition, the result of the petition is an award of property, but does not order appointment of anyone to represent the estate, so a petition for probate or administration may need to be filed to appoint someone to take care of any subsequently discovered assets. (See “Estate Administration Basics”) The petition for probate or administration can also be filed at the same time as the petition for year’s support. The petitioner will need to notify the creditors and the heirs of the decedent, who will then have an opportunity to file an objection to the petition. Such objections will likely be that the surviving spouse or minor children do not reasonably need the assets requested to maintain the standard of living for 12 months. In deciding whether and how much to award, the court can consider the standard of living of the survivors, including the other assets available, the standard of living at the time of the death of decedent, and the age and health of the surviving spouse. |