This law firm now operates and maintains the new website georgiayearssupport.com. Feel free to visit.

Tanner Pittman, LLC regularly advises clients and assists with petitions for year's support, year's support litigation, and other probate and estate matters.   

This firm recently published a guide for attorneys to the Georgia law of year's support for a continuing legal education event in Columbus, Georgia. 

The guide is intended for use by other attorneys and is fairly technical, but as I think it also may be useful to lay individuals petitioning for year's support, I am uploading it in its entirety here. 

We welcome comments and questions from readers about Georgia year's support law. 

  

Tanner Pittman, LLC regularly advises clients and assists with petitions for year's support, year's support litigation, and other probate and estate matters.  

This firm also publishes content at the lawyer directory and rating site Avvo.com. Most recently, we posted a 16-step guide to petitioning for year's support in Georgia.

Year's support is the right of every surviving spouse or minor child of a deceased to inherit certain property from the estate, regardless of what is stated in the will. Attorneys have also used year's support as a strategic  way of legally avoiding certain debts of the estate, ensuring a maximum tax break on certain real property of the estate, and quickly administering some intestate estates without the need for a full court-supervised administration and all of the complicated steps that can involve. 

Tanner Pittman, LLC regularly advises clients and assists with petitions for year's support, year's support litigation, and other probate and estate matters. 

In addition to this blog, Tanner Pittman, LLC also publishes content at the website estateplanninglawfirms.com. Recent titles include

Providing For Handicapped Heirs In Your Will With a Special-Needs Trust

Avoiding Year's Support Litigation in Georgia Using Living Trusts

The Pitfalls of Insolvency and Gifting to Relatives when Estate Planning

In the State of Georgia, the statutory doctrine of "year's support" can utterly defeat some estate plans. The problem can be voided by careful planning and the use of a revocable, inter-vivos trust (also known as a "living trust.")

What is year's support?
In Georgia, year's support is the right of a surviving spouse or minor child of a decedent to take property from the estate. How much property? That question is not easily answered and is the source of an enormous amount of estate litigation . The technical answer is "an amount sufficient to maintain the standard of living" of the surviving spouse or minor child for one year. Ga. Code Ann. § 53-3-7 (West)

It is for the courts to determine how much money or property is needed to accomplish this. Such determinations are costly and time-consuming exercises in litigation and trial work. They typically involve months of preparation and at least one appeal. Furthermore, experience shows that some (typically non-lawyer) probate court judges in Georgia see year's support as a convenient way of administering an estate and will award all estate property to a petitioning survivor. (Despite settled precedent on the question. See Taylor v. Taylor, 288 Ga. App. 334, 337 (2007)).

A seemingly inescapable dilemma.
In any event, there is no way to deprive a spouse or surviving minor child of year's support in a will, by agreement, or otherwise. This is true even if (for example) the spouses have been married for only one year and the will clearly states that only the children from the testator's previous marriage are to receive his or her estate.

Solution: there is no estate.
To avoid these problems, one must simply die with no property. Though a seemingly drastic solution, it can be accomplished without also requiring that one's last check bounce. Attorneys use an agreement called a revocable, inter-vivos trust or "living trust" in order to make sure one can enjoy one's property during one's lifetime but have complete say over how it is distributed after one's death.

A "living trust" is defined in more depth at the link below. But the important aspect of the trust for our purposes is that <b>it</b> and not the settlor (the person who made the trust) owns the property. When the settlor dies, the property in his or her estate cannot be taken as year's support because there is no property to take: the trust technically owns it.

Conclusion.
In Georgia, where wills are still the predominant method of estate planning, there is nevertheless a fine argument to be made for drafting a living trust in order to avoid the necessity of paying year's support. Even if year's support should be paid and the testator wants to provide for a spouse and minor children, a living trust can allow the testator to establish the amount he or she wants to grant the surviving family and not let it become a matter for costly, emotionally taxing dispute in probate court.

Tanner Pittman, LLC is an estate planning and probate law firm that regularly advises clients on living trusts, year's support, and a range of other complex estate planning questions. Feel free to contact us today about your own such issues.

The Georgia Supreme Court handed down the case of Cabrel v. Lum last term, which contains an excellent elucidation on Georgia law of year's support and can be found here. 

I particularly like this holding because it illustrates again why Georgia's doctrine of year's support is not simply a convenient way of administering an estate, as many lawyers (and some probate judges) would have it. 

In particular, the Georgia doctrine of year's support contains the common law rule (nowadays somewhat bizarre but in our agrarian past, perfectly sensible) that minor children receiving set-aside property  lose all right to income from that property upon 1. their marriage or 2. their attaining the age of majority. During the lifetime of the surviving spouse, all such income can be used for her benefit, and the income of the minor children "is limited to that which remains after all minor beneficiaries have attained majority and the surviving spouse is no longer in life." Cabrel v. Lum, S11A0212, 2011 WL 2119403 (Ga. May 31, 2011)

In essence, year's support creates a bizarre form of trust for minor-child beneficiaries - not at all like anything you'd see from a properly administered (or probated) estate.