My mother passed 14 months ago. Her husband was listed in her will as Primary Devisee. Do my sister and I have any legal rights

Asked 9 months ago - Tucker, GA

to their joint-owned (community?) real estate? We just received notice of his petition for Year's Support. We are listed as interested party on cover letter and heirs at law/heirs(is there a difference?) in the petition. We are planning to object. Do we need an attorney? Should we contact his attorney to advise. The will was never probated. The probable value listed of her estate is questionable. Do we any legals rights to their financial information? I would think that since we are listed on this petition, we have some claim in her estate...I am I correct?

Attorney answers (7)

  1. Paula Jeanette Mcgill

    Contributor Level 17

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    Answered . At the minimum, you should pay for an initial consultation with an experienced attorney who is used to handling will disputes. A years' support entitles the surviving spouse to support from the estate. This will decrease the value of the net estate. Moreover, there are assets that may have been transferred to her husband upon her death. As a result, those assets are not considered part of the estate.

    You would have to examine the will to determine if she left any assets to you. In addition, if the will is invalid, the estate would be divided under intestate succession. In that case, you would be entitled to a portion of the estate. Again, all this should be discussed in a lawyer's office with the documents that are available. You should do this as soon as possible because there are time limits for challenging the will and the probate process.

  2. Loraine M. DiSalvo

    Pro

    Contributor Level 16

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    Answered . My condolences on your loss. I agree with the first answer: you should consult an attorney as soon as possible. Have the attorney take a look at your mother's Will, the Petition you have been asked to sign, and any other information you have. As your mother's heirs, you and your sister, along with your mother's husband and any other potential heirs, would have a right to receive property from your mother's probate estate (that does NOT mean everything she owned, only those assets which didn't pass to someone else under a beneficiary designation or right of survivorship upon her death) IF she had no valid Will. Your mother's husband, as her surviving spouse, also has a legal right to receive year's support from her probate estate (I assume she had her primary residence in Georgia, since we're the only state with year's support). He is not required to offer the Will for probate, although the original Will must be filed with the probate court for informational purposes only if it will not be offered for probate. He can request the year's support instead. Year's support can be helpful where there are creditors. It can also produce a significant property tax break for any real estate awarded as part of the claim.

    If you and your sister contest his petition for year's support, you will create additional costs and fees which may well deplete the estate. The court will then actually have to look at the request he is making, and determine what the reasonable year's support amount would be. If he does not have a lot of other assets or income, he may well be awarded everything he is asking for. If he has other assets and resources, the request may be reduced, possible down to very little. But he does have the legal right to ask for year's support, and if he gets an award his award would trump any right that you or your sister would have as heirs (I assume both of you are over 18 - children under 18 can also claim a year's support, but if you're older than that you're not entitled), even if the Will is not valid.

    If the Will is valid and says that he receives everything anyhow, even if you defeat his year's support claim, he will still have the option (potentially) to offer the Will for probate and receive other assets that way.

    So, while yes, you do have rights here, it may cost you a lot of money, time, and effort, and you may not end up with anything to show for it other than hard feelings and legal fees. It is worth your time to consult an attorney before moving forward, and to proceed (if you decide to do so) ONLY with the help of an experienced probate litigation attorney. Your stepfather's attorney will not be able to advise you of anything: he does not represent you. And remember: time to contest these things is very limited. Move immediately if you plan to do so at all, or you will lose your chance to do so.

    Best wishes to you.

    This answer is not intended to provide you with specific legal advice regarding your situation, or to create any... more
  3. Glen Edward Ashman

    Pro

    Contributor Level 20

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    Answered . You definitely need to speak to a lawyer and do NOT speak to the husband's lawyer. There is not enough information in your post to answer what will happen without a review of deeds and other papers.

    ATTORNEY GLEN ASHMAN 404-768-3509 www.glenashman.com . If you find this answer helpful, please mark it here... more
  4. Robert M. Gardner Jr.

    Contributor Level 18

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    Answered . With a timely filed response to the Petition for Year's support, you would be entitled to the information you are asking about. However, Year's Support petitions are difficult to defend, so you should not try and do this on your own. You are asking some good questions, so it sounds like you have a good grasp on the fact that you need assistance. In the meantime, to answer some of your questions: 1) Georgia is no a community property state, so the question of what was jointly held or held only in your mother's name will be important, in addition to whether property was held as "joint tenants with rights of survivorship" which would automatically belong to her husband upon her death if the deeds were done correctly. 2) Interested parties can be a beneficiary or an heir. Whereas a heir is a person who would have a right to inherit if there were no will, such as children or descendants, a beneficiary is a person or entity who is granted property under a will. For example: A church granted money in a will would a beneficiary but not an heir, , whereas a child disinherited under a will would be an heir but not a beneficiary.

    The above information is general in nature. In order to obtain more specific legal advice upon which to base your... more
  5. Richard Michael Morgan

    Pro

    Contributor Level 13

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    Answered . Let's answer your various questions by starting out with the most important to you. Do you have a right to part of your mother's assets upon her death in this situation? First, your mother has the right to do whatever she wants with her assets, and i mean whatever she wants. She had the right to take actions to carryout her intent in this regard, including decisions as to how she owned her assets and how her beneficiaries were designated and the creation of a valid Will or Will and Revocable Trust combination, or she had the option to not act and let applicable state law control what happens with her assets, with the applicable law in this case being GA law if she died as a GA resident / domicile. The one exception to these rules in GA is the right of a surviving spouse and minor (under 18) children to Petition for a Year's Support, which the amount that they would need to live for a year at t heir normal standard of living in light of other available assets and income. Under the Year's Support process, the Petitioner, her husband in this case, can ask for whatever he wants and this could be your mother's entire probate estate (the probate estate includes the assets that would be controlled by a valid Will assuming one exists). The Probate Court will give her husband whatever he asks for unless the interested party(ies) properly and timely object, in which case, the husband will have the burden of proving the proper amount needed as a Year's Support in a Probate Court process. So, the bottom line is that if your mother acted to properly control what happens to her assets then you, as an adult child, have zero rights to her assets, as they are her assets and she can do whatever she wishes to do with them. However, if she failed to properly control what happened to them, then the net remaining assets in her probate estate (after the payment of debts, expenses and Year's Support claims) would pass to her heirs (under the state law Will provided to those that do not do their own), and in this case, her heirs would be her husband and children, splitting these assets in equal shares, but husband gets at least a 1/3 share. So, the issues are multiple: (i) are the assets in your mother's estate significant enough to fight about, (ii) is her husband's claim for Year's Support proper and the amount in assets requested reasonable in light of all the facts, (iii) to the extent any assets would remain, is your Mother's Will valid (properly signed and witnessed, and not subject to undue influence, fraud, etc), (iv) if the Will is valid, who is to receive your mother's assets, and (v) if the Will is not valid how much would the heirs each receive as heirs after the payment of Year's Support claims, debts and expenses. Finally, it should be noted that Year's Support claims are sometimes used to avoid unsecured creditor claims where their are more debts than assets in the estate since Year's Support claims have a higher priority claims status to estate assets. In short, you will need an attorney to assist you in this matter if you wish to pursue it further. I hope this answer was helpful.

  6. Stephanie Birge Carman

    Contributor Level 7

    7

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    Answered . It is unclear from your question how the property was legally held and if there were survivorship rights. You should speak with an experienced probate attorney regarding the Petition for Year's Support and the size of the estate. You should not speak with his attorney.

  7. Drew Norman Early

    Contributor Level 17

    3

    Lawyers agree

    Answered . You should immediately get a consult with a local estate attorney to discuss your rights and respective claims on her estate under a Petition for Year's Support.

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