The petition for year’s support is unique among the petitions that may be filed with the probate court. This petition is usually filed along with another one of the petitions as it does not result in anyone being appointed to represent the estate.
The main purpose of this probate petition is to set aside an amount of money from the estate (or property from the estate) for the benefit of minor children or the surviving spouse of the deceased. The amount of money or property set aside is taken from the top of the estate, meaning that the money goes to the family before heirs, creditors, or beneficiaries of the will.
Usually the amount of money or property that is allowed to be set aside is equal to one year of the standard of living to which the spouse or the child is accustomed. The probate code requires the probate court to take any other sources of income that the petitioner has into account when they are calculating this amount.
This probate petition is the most complex petition, more than any of the others. The petitioner should always be careful in using this petition and should consider consulting an attorney if they haven’t already done so previously.
A surviving spouse or a surviving minor child are the only persons allowed to file this probate petition. In addition, the petition must be filed within two years of the date of death.
When this probate petition is filed, the petitioner must definitively identify all estate property requested and state the amount of money requested from the probate court to award as one year’s support. The petitioner should be very careful with his or her description of property. This is because if the petition for year’s support is granted by the probate court, then the court will incorporate the petitioner’s descriptions into the order. If the descriptions provided do not completely and precisely identify the property, then the property may not be properly set aside. This would, of course, defeat the entire purpose of the year’s support petition.
The petitioner is also required to accurately identify all of the heirs, beneficiaries, and creditors of the estate. This information must be provided to the probate court with their addresses in order for the probate court to send a notice to each of them. This must happen to provide an opportunity for each involved party to object to the petition if they desire.
If no objection is filed, then the probate court will grant the petition for year’s support. Without an objection the petition will be granted as written and without a hearing. However, if there is an objection, the probate court will order a hearing. This hearing is held in order to determine the amount of money and the property that the petitioner should be granted. At the hearing, it is the petitioner’s job to prove the amount of the award. If the petitioner is unable to provide sufficient proof for the amount of the award the probate court may deny the petition in the end. For this reason, I strongly recommend consulting with an attorney before filing this petition. An attorney’s assistance could make all of the difference when dealing with the intricacies of this petition.
If you are a surviving spouse or surviving minor child (under 18 years old), we can help make sure you keep as much of the estate as possible.
This wraps the report series on how to open probate in Georgia. I thank you for reading along and hope that this series has helped to remove some confusion you may have felt regarding starting the probate process.
If you feel like you would like personalized advice on top of what you’ve read in this series, please call our office at (770) 920-6030 or use the form below to schedule your free consultation with us.
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I wish you the best of luck in the future.
Erik J. Broel