Petition for Year's Support: What is it? When is it used? Why would you use it?
A petition for Year's Support is a proceeding in probate court regarding a decedent's estate. It is sometimes used instead of one of the other common procedures to administer an estate or probate a Will, but it is not mutually exclusive of those other proceedings. Some attorneys over use Year's Support petitions, while other attorneys do not consider them frequently enough.
What is a Year's Support petition and who files it?Year*s Support evolved from a recognized duty of a spouse to protect and provide for his or her surviving spouse and minor children, and to supply their immediate wants and necessities during the period of administration of the decedent spouse's estate.
Thus, a petition for Year's Support may be filed by or on behalf of a surviving spouse, and/or minor children. We'll focus on the use of this tool by a surviving spouse, although the same general principles apply as to minor children. Under Georgia law, a spouse may file the petition asking the court to set aside an award of an amount sufficient to support the spouse for 12 months, hence "Year's Support".
What are some common examples of when a Year's Support petition might be filed?(i) The first and perhaps most common use is where the estate is insolvent. An award of Year's Support has highest priority under Georgia law, and takes precedence over all other estate claims including funeral expenses, last illness expenses and creditor claims [however, it does not of course set aside claims that are secured, such as a mortgage or car loan where the asset is pledged as collateral for the loan]. Thus, for example, if the decedent has an estate with gross asset values of $40,000, and has unsecured debts or medical bills that are significant, or even in excess of the total asset value, a spouse might petition for an award of Year's Support and ask to be awarded $40,000 in lieu of any payment to the creditors;
(ii) Another common usage of Year's Support is where the estate is very small. It is oftentimes more expedient and less expensive to handle a very small estate through a Year's Support petition, and it also allows the avoidance of creditor claims as set forth above. (This works best either where the spouse is the only heir, or where the other heirs [children] do not object to the spouse receiving all of the estate assets);
(iii) A third usage of a Year's Support petition is where the decedent did not have a Last Will and Testament. As with a very small estate, it is often more efficient and slightly less costly to petition for Year's Support than to petition for Letters of Administration. The larger the estate, however, the less likely that a Petition for Year's Support will be the procedure of choice;
(iv) Yet another purpose is to set aside real property taxes on the residence. The Georgia statute allows the property taxes on the decedent's primary residence to be "set aside" either in the year of death, or alternatively in the year of the filing of the petition. This means the property taxes are waived for that year;
(v) Finally, petitions for Year's Support are often used where (generally in a second or later marriage) the spouse was either omitted from the decedent's Will, or left only a token amount. In these instances, the spouse can petition the court and often be awarded some amount from the decedent's estate.
How is the amount of the Year's Support award determined?Prior to 1998, there was a statutory amount, (which by 1998 was grossly outdated in its amount), of $1600. Under current Georgia law, there is not statutory amount, and a court is not required to award any amount to the petitioner. Likewise, there is no statutory cap on the amount. Even though there is no mathematical formula for use in determining the amount of a Year*s Support award, the amount awarded must be substantiated by evidence that relates to measuring a petitioner*s economic standard of living.
The foregoing standards notwithstanding, the determination is not always so rigid. Certainly, if there is a challenge or objection to the petition for Year's Support, then these guidelines are quite important, and the burden of proof is on the petitioner. If, however, there is no challenge or objection either from creditors or other heirs, many probate judges in Georgia will award the entire estate (within reason) as Year's Support.
What if there is also a Will? Is it still probated?So how does a Year's Support petition play out where there also exists a Will? Many Wills will have a provision that reads along the lines of "the provisions for my husband hereunder are in lieu of Year's Support". This provision essentially keeps a spouse from 'double dipping', such that if the spouse files for Year's Support, any award by the court is in lieu of the provisions of the Will; in other words, the spouse forfeits the bequests under the Will. If there is a Will, and it is not offered under a separate petition, it is often attached to the Year's Support petition to be filed with the court should the need to probate it subsequently arise.
Are there any hidden dangers or points to be aware of?Yes! there are!.
i) A Petition for Year's Support must be filed within two (2) years of the date of death of the decedent. There is no extension for this time limit, and thereafter, a filing for Year's Support is prohibited.
ii) A subsequent marriage will terminate the right to file for Year's Support
iii) If filing only a petition for Year's Support (in other words, not also filing a petition seeking the appointment of an Executor or Administrator), and additional assets are subsequently discovered, there will be no authorized estate representative (i.e., Executor or Administrator) to deal with these assets, and at that time, you would then need to file a Probate or Administration petition. For this reason, and while not the norm, neither is it uncommon to file both a petition for Year's Support AND a petition for probate or administration, simultaneously.
What if I want to contest the filing of a petition for Year's Support?This may be the case where the surviving spouse is a second or third marriage and the children from prior marriages object. (For that matter, it can also happen even where the spouse is the natural parent of the children!) In terms of objecting to a Year's Support petition, the standard is that the Year*s Support award must be reasonably related to the amount needed by the surviving spouse to maintain his or her standard of living for twelve months. It is not meant to be a method of compensating the spouse for personal sacrifices or other contributions or of distributing the estate. Nor is a claim for Year's Support analogous to a tort claim where general damages can be awarded based on the enlightened consciences of impartial jurors. The burden of proof is on the applicant. And while there is no mathematical formula, the statutory criteria include consideration of other assets, income and sources of support of the applicant, the solvency of the estate, and "such other relevant criteria as the court deems equitable and proper". These other factors often include the standard of living at the time of decedent's death, the applicant's age and health, and other factors.
Does all this hold true in every state?Not necessarily. This guide is written for Georgia law. Each state's laws on Year's Support (sometimes called Spousal Share, Elective Share, and other terms in other states) will vary from state to state.