(For Effective Date, See note.) "Homestead" Defined; Taxes and Tax Liens

  1. Law
  2. Georgia Code
  3. Wills, Trusts, and Administration of Estates
  4. Year's Support
  5. (For Effective Date, See note.) "Homestead" Defined; Taxes and Tax Liens

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  1. As used in this Code section, the term "homestead" shall have the same meaning as set forth in Code Section 48-5-40.
    1. (For effective date, see note.) In solvent and insolvent estates, all taxes and liens for taxes accrued for years prior to the year of the decedent's death against the homestead set apart and against any equity of redemption applicable to the homestead set apart shall be divested as if the entire title were included in the year's support. Additionally, as elected in the petition, property taxes accrued in the year of the decedent's death or in the year in which the petition for year's support is filed or, if the petition is filed in the year of the decedent's death, in the year following the filing of the petition shall be divested if the homestead is set apart for year's support; provided, however, that, if the property taxes elected in the petition pursuant to this paragraph are paid after the filing of the petition but prior to the entry of the order setting apart the homestead for year's support, the property taxes accrued in the year following the year elected in the petition shall be divested instead.
    2. (For effective date, see note.) In solvent and insolvent estates, if the homestead is not claimed, all taxes and liens for taxes accrued for years prior to the year of the decedent's death against the real property set apart and against any equity of redemption applicable to the real property set apart shall be divested as if the entire title were included in the year's support. Additionally, as elected in the petition, property taxes accrued in the year of the decedent's death or in the year in which the petition for year's support is filed or, if the petition is filed in the year of the decedent's death, in the year following the filing of the petition shall be divested if the real property is set apart for year's support; provided, however, that, if the property taxes elected in the petition pursuant to this paragraph are paid after the filing of the petition but prior to the entry of the order setting apart the real property for year's support, the property taxes accrued in the year following the year elected in the petition shall be divested instead.

(Code 1981, §53-3-4, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 1998, p. 1586, § 12; Ga. L. 2016, p. 349, § 1/HB 547; Ga. L. 2020, p. 377, § 1-5/HB 865.)

Law reviews.

- For annual survey of wills, trusts, guardianships, and fiduciary administration, see 68 Mercer L. Rev. 321 (2016).

COMMENT

This section replaces the provision that appeared in former 53-5-2(b) relating to the divesting of taxes. This section provides that taxes and liens that accrued in the years before the year the decedent died shall be divested. Additionally, the petitioner may elect to have divested property taxes from either the year the decedent died or the year the petition is filed. If the petition is filed the year the decedent died, then the petitioner may elect between that year or the year following the filing of the petition.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 113-1002, are included in the annotations for this Code section.

Married daughter not entitled to year's support.

- Minor daughter, married at the time of her father's death, and not a member of his household, but living with and supported by her husband, is not entitled to a year's support out of her deceased parent's estate. Having no right to any benefit obtained by the mother, plaintiff was not represented by her or bound by her acts. Therefore, while the other children of the decedent father were so bound, she was not estopped or precluded from attacking the validity of the proceedings. Jones v. Federal Land Bank, 189 Ga. 419, 6 S.E.2d 52 (1939) (decided under former Code 1933, § 113-1002).

Paramount right of United States to collect taxes.

- Even though Georgia law exempts property set aside as year's support from levy in favor of general creditors, this exemption would not be valid as against the right of the United States to collect an assessment for income taxes. Davis v. Birdsong, 275 F.2d 113 (5th Cir. 1960) (decided under former Code 1933, § 113-1002).


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