In Georgia, the surviving spouse or minor child(ren) of a deceased individual have a right to property out of his estate. This right is asserted via a Petition for Year's Support. What follows is a step-by-step guide to obtaining year's support through the courts.
Determine whether you are entitled to year's support.
A surviving spouse or minor child of the deceased is entitled to year's support so long as the surviving spouse has not remarried before filing a petition for year's support or the minor child has not married or reached the age of 18 before petitioning. Even a legally separated spouse may petition.
Determine the interested parties.
All heirs must be served with a copy of a petition for year's support. To determine a deceased's heirs, try using Georgia's standard probate court worksheet, located here: http://www.gaprobate.org/forms/forms10/060509+determination+of+heirs+worksheet.pdf Other interested parties must also be served. These include beneficiaries of the deceased's will or trust, creditors, lien holders, and the county tax commissioner in each county where the deceased owns property.
Determine whether any parties will object to the petition.
Before you even begin a petition for year's support, it is a good idea to ask yourself whether any of the interested parties will object to it. Is there only one surviving spouse and two minor, mutual children of the deceased? If so, then it is unlikely any objections will be filed when the surviving spouse petitions. Are there three children of the deceased by a prior marriage, and he or she had only been re-married three months before death? If so, an objection (known as a "caveat") to the petition is more likely, as any award of year's support depletes the estate for the non-mutual children.
Ascertain the property of the deceased.
Also before petitioning, be sure you are aware of the full extent of the deceased's property. Here, we are not worried about "non-probate" property such as bank accounts that were jointly titled, insurance policy proceeds, etc. Rather, we are concerned with all property owned by the deceased that does not pass to another person by the terms of some contract or by operation of title. Even if the petitioner was co-owner of the property, we want to be sure we're thinking of that property too, as we may want to petition for the deceased's one half. TAKE YOUR TIME in inventorying the deceased's property. If you're not 100% sure what s/he owned, then ask relatives whether there wasn't property located in another state or a safe box in some far-off bank opened 20 years ago.
Decide how much of this property to include in the petition. Consult an attorney if you're unsure.
How much to petition for is a matter of judgment. In Georgia, the petitioner(s) for a year's support order get everything they ask for if no objection is filed. If you're sure there will be no objection, then by all means ask for everything. If you think some heirs may object, then be prepared to face a hearing on the question of how much property the surviving spouse and/or children would need to remain in their accustomed standard of living for one year - that's the standard the court will apply. Consider speaking with an attorney at this point. Court battles deplete estates terribly and are to be avoided if at all possible.
Determine the deceased's debts.
An award of year's support is "favored" by the courts over many debts owed by the estate. As with ascertaining the deceased's property, take time in figuring out all the debts he or she owed. You'll want to list them in the petition for reasons explained below. Collect credit card bills, call banks to be sure no line of credit exists, and (perhaps the best tool) order a credit report of the deceased to see what debts might still be out there. We're most interested here in UN-secured debts. That is, lenders that have not got a car, a house, some land, etc. backing up their loans. (We can also avoid certain non-purchase-money secured debts. You may wish to consult an attorney if you believe the deceased may have had some of these but aren't sure.)
Find service addresses for creditors.
Look again at your list of creditors. For each, use the web to find out where it can be served with legal process in Georgia. The best site for achieving this is the Secretary of State's corporations search site at http://corp.sos.state.ga.us/corp/soskb/csearch.asp. You're generally looking for the address of the creditor's registered agent.
Obtain probate court form 10 and a death certificate
Download the Word version of Georgia Uniform Probate Court Form 10. It's available here http://www.gaprobate.org/forms_word.php You will also need to file a death certificate with your petition. In most counties, these can be obtained from the health department for a small fee.
Fill out pages 1 through 3 (some general notes)
Most of the blanks on these pages are self-explanatory. You do not need to write the "estate number" at the top of any page. The probate court will do this for you. Note with question 3 that the probate court must receive a copy of any will (but not living trust) of the deceased. As to question 4, come up with your most educated estimate. Going too far afield could subject you to liability. Estimates of the value of any real property can be obtained from your county's tax assessor. We'll leave question 6 for later in this guide. Question 7 involves initialing by the proper answer and striking through all portions of the answer that are inapplicable. If, for example, there is no executor or administrator of this estate, initial next to option a. and strike out the entire second parenthetical sentence. (No need to strike out any sentences next to a blank that you did not initial.)
Fill out page 4. Give due attention to question 8.
Question 8 is very important. Give it due consideration. Selecting option 1. almost never makes sense for reasons I won't go into. In choosing between options 2. and 3. consider that the tax bill for real property may come due before your petition is granted (e.g. you file in early November, taxes come due, and then the petition is granted in December). The problem there is that having a pending tax bill can create a hassle with some county tax commissioners, so it may be better to select option 3. if it's the case. In almost all other instances, option 2. seems the most sensible. It may, however, be useful to contact an attorney who can help you parse through the problem, as the tax savings from correctly selecting the proper answer can be large.
Fill out Exhibit "A."
Be careful with Exhibit "A." Here, in many cases, you will want to list all of the property of the deceased, thus dealing with his or her estate entirely with the year's support petition. For every piece of property that can be legally described, do include a legal description. You must write full legal descriptions of real property (which can be found on the deeds to such property) and detailed descriptions of automobiles and vehicles (including VIN numbers, makes, models, years, etc.). For any property with a non-purchase-money lien against it, describe that property specifically. If bank accounts exist that were titled solely in the deceased's name, list the full account number, institution name, and type of account. For clothing, books, furniture, collectibles, tools, etc., it is generally sufficient to say "all other personal property of the deceased, however situated and wherever located," or words to that effect.
Fill out Exhibit "B."
All heirs and creditors and certain other "interested parties" must be listed on Exhibit "B." Attach additional sheets if necessary. This is the portion of the petition with which you are giving everyone a chance to object to the award of year's support. FAILURE TO OBJECT within the statutory time will mean that the interested parties lose all right to claim the property awarded. This is particularly useful in the case of an estate that has a lot of credit card debt, spread over six or seven cards. For debts of $5,000 or less, experience shows that credit card companies almost never file an objection, even to a complete award of all the deceased's property (which effectively deprives such credit cards of any way to get repaid - they can't go after heirs for debts the estate owed).
Fill out the rest of the petition.
A thorough discussion of all points in the petition would be as long as the petition itself and is beyond the purview of this guide. The important thing is to go ahead and pre-fill all information for the court. Clerks don't like to fill out petitions themselves. Furthermore, prepare letter-sized, stamped envelopes (standard "forever" stamps will do) for each and every person or company listed in Exhibit "B."
Obtain consent of as many people as possible.
For each heir from whom you think you can obtain consent (and even from creditors, if possible), go ahead and mail a copy of the petition along with an extra Page 8 and a stamped return envelope to such person. Pre-fill one of the sections in Page 8 with such person or company's name. Ask them very politely to return a signed and notarized acknowledgment and consent to your petition to year's support. Doing so will foreclose their right to object and will mean one fewer person you have to serve by mail.
Contact the probate court.
Call the probate court in the county in which the deceased lived just before s/he passed away. That's where you'll need to file this petition. You will need to ask the clerk1. What the filing fee will be. (Expect somewhere between $150 and $200. Copies cost extra, so offer to copy the petition yourself before filing. Have a page count of the petition and attachments ready so that the clerk can tel you the total filing cost); and 2. When is a good time to appear and present the petition. (Many courts require you make an appointment with the chief clerk or probate judge). Follow the clerk's instructions.
After the statutory notice has been published and the time for objection has passed (and assuming no objection is filed), the court will grant your petition for year's support. If there was real property awarded, you will want to follow up to be sure that Page 9 (the "Certificate of Order of Year's Support") was properly filed and indexed in each county where real property was located. Also give a call to the tax commissioner in the county(ies) where real property is located and be sure that his/her office received notice of the granting of the petition and is not going to assess taxes over the property in the relevant year.