By Craig Thrift, Thrift McLemore, LLC, September 2, 2018
The death of a loved one is a time of extreme mourning and anguish for surviving family members. In addition to the grieving process many may worry how they will move forward financially, especially if the deceased was the breadwinner of the family. While many families are familiar with the need for a will to add financial security in these times, an almost forgotten provision in Georgia Probate Code is often neglected as a tool to care for these loved ones: Year’s Support.
What is Year’s Support?
Georgia Code Title 53, Chapter 3 – Year’s Support is, despite its name a permanent award to a surviving spouse, minor children, or both. It is a right to inherit property for these individuals, regardless of what may have been communicated via will, the absence of a will, or the relative position of the majority of creditors. The beneficiary is generally entitled to receive an amount equaling satisfactory support and maintenance for a period of 12 months for a standard of living that the individual is accustomed to. This right is not absolute; for if a spouse remarries or dies before filing, or if a minor child reaches the age of majority before filing, this right is lost. To successfully secure a year’s support claim, a petitioner must file in the probate court in the county of the deceased within two years. This claim can be challenged by other beneficiaries of the will, and the award will ultimately depend on the court’s discretion.
In Laymen’s Terms
Year’s Support is in actuality an antiquated law that has been on the books in Georgia for decades, dating back to a time when males were the primary provider and females were the primary caregivers within households. While it holds a dated application in modern society, it is nonetheless an active law that can be very effective for families depending on the situation. In a nutshell, it is a way to ensure that families of deceased individuals are not left out in the cold due to the decedent’s neglect in creating an effective estate plan, or due to changes in the decedent’s financial situation since the creation of an estate plan. A properly petitioned Year’s Support claim places spouses and minor children squarely in the front of the line when it comes to divvying up deceased individuals assets, ensuring the family is fed before most creditors or distant money hungry relatives.
Applying Year’s Support Strategically
By terms of a properly executed will in Georgia, an individual would most often have a surviving spouse elect between the right of seeking an award of Year’s Support, or taking the property under the will as it exists. For decedents facing significant debt at the end of life or blended families, this offers significant flexibility with regards to the estate.
Year’s Support is especially beneficial for families of deceased individuals with high levels of debt relative to assets. Be it end of life care or some other reason, often times creditors can take the lion-share of an estate leaving surviving family members to fend for themselves. A Year’s Support election pushes these family members to the front of the line at the expense of said creditors. This does not include mortgage debt, but does extinguish personal debt such as credit cards, student loans, etc.
Blended families are another area where Year’s Support enjoys high participation. If a decedent does a poor job of leaving assets to minor children in the event of remarriage, or leaves the very home that a second spouse lives in to his minor children, Year’s Support offers recourse for the aggrieved parties. While many blended families are able to get along cordially, Year’s Support can be the last bastion of support for others engaged in a nasty probate battle.
Once properly filed, courts generally condone the award of Year’s Support unless an objection is filed by a separate party with an interest in the estate. If an objection is filed, it is necessary to retain an attorney, as proper accounting of the estate and procedural actions apply. The likelihood of a successful challenge depends on a number of factors, and is an intensely fact specific inquiry.
Also worth mentioning is that an award of Year’s Support only applies to probate assets. This means that retirement accounts such as 401k’s, IRA’s, and life insurance policies are exempt unless there is no designated beneficiary. Similarly, accounts designated as Joint Tenants with Right of Survivorship (JTWRS) become sole property of the surviving individual upon death of the decedent, exempting themselves from reach of probate.
How Can We Help?
Before electing or petitioning for Year’s Support in Georgia, it is worth reviewing the complete fact set with a skilled attorney. For a self- help guide on Year’s Support in Georgia, click here. If you have any questions about Year’s Support, or any other aspect of Estate Planning in Georgia, the qualified attorney’s at Thrift McLemore are here to help. You can reach Thrift McLemore by email at email@example.com or by phone at 678-671-4031 to discuss how we can assist you in creating an estate plan that works for you today.
Please visit us on the web at www.thriftlegal.com.