By Judge Clarence Cuthpert, Jr.
Rockdale Probate Judge
When a person dies (decedent) with or without a Will, and is survived by a spouse, minor children, or both, those individuals are entitled to an allowance out of the estate of the decedent. This allowance is called “years support,” defined in the law as property that is set aside for the family’s support and maintenance for the period of 12 months from the date the decedent died. Year’s support is based on the public policy of providing support for the family of the decedent before allowing the estate to be distributed to creditors and other distributees. With a few exceptions, year’s support has the highest priority of claims against the decedent’s estate. Because the year’s support process can be more complex than the issues addressed in this article, you are encouraged to seek legal counsel when filing a petition for the same.
The surviving spouse of the decedent can apply for year’s support unless he or she has remarried after the decedent’s death. However, if a decedent died with a Will that made provision for his or her spouse in lieu of year’s support, the surviving spouse must make an election of one or the other. The decedent’s minor children may apply for year’s support (this includes adopted children or children born out of wedlock) if they are under age 18 and not married. A minor child’s parent, legal guardian, or guardian ad litem may also file on behalf of the child.
In order to receive year’s support, the spouse or children must file a petition within 24 months of the decedent’s death. The petition must be filed in the county where the decedent was domiciled at the time of death. If the decedent was not domiciled in Georgia, the petition may be filed in any county in which the decedent owned property. If any objections to the petition are filed, the probate court will hold a hearing to determine how much property, if any, will be awarded as year’s support. If no objection is filed, the probate court will award the property requested in the petition. The probate court may make separate awards of property to the surviving spouse and the minor children.
The probate court may award year’s support as to property located inside or outside the county where the decedent was domiciled at the time of death. Title to property both inside and outside the county where the decedent was domiciled at the time of death shall vest in the surviving spouse, and/or children. As elected in the petition, property taxes accrued in the year of the decedent’s death, or in the year in which the petition for year’s support is filed, shall be divested if the real property is set apart for year’s support.
The information included herein is only intended to provide a basic understanding of year’s support. This information is not all inclusive, and should not be used as or considered to be legal advice.
Throughout each month, the clerk of courts, tax commissioner, sheriff and probate judge—Rockdale’s elected constitutional officers—discuss topics relevant to their respective roles.