(For Effective Date, See note.) Filing of Petition

  1. Law
  2. Georgia Code
  3. Wills, Trusts, and Administration of Estates
  4. Year's Support
  5. (For Effective Date, See note.) Filing of Petition

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  1. Upon the death of any individual leaving an estate solvent or insolvent, the surviving spouse or a guardian or other person acting in behalf of the surviving spouse or in behalf of a minor child may file a petition for year's support in the probate court having jurisdiction over the decedent's estate. If the petition is brought by a guardian acting on behalf of a minor child, no additional guardian ad litem shall be appointed for such minor child unless ordered by the court.
  2. (For effective date, see note.) The petition shall set forth, as applicable, the full name of the surviving spouse, the full name and birthdate of each surviving minor child, and a schedule of the property, including household furniture, that the petitioner proposes to have set apart as year's support. The petition shall describe fully and accurately any real property the petitioner proposes to have set apart as year's support with a legal description sufficient under the laws of this state to pass title to the real property.
  3. A petition for year's support shall be filed within 24 months of the date of death of the decedent.

(Code 1981, §53-3-5, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 1998, p. 1586, § 13; Ga. L. 2020, p. 377, § 1-6/HB 865.)

Law reviews.

- For survey article on wills, trusts, guardianships, and fiduciary administration, see 60 Mercer L. Rev. 417 (2008). For annual survey on wills, trusts, guardianships, and fiduciary administration, see 65 Mercer L. Rev. 295 (2013).

COMMENT

This section contains provisions from former O.C.G.A. Secs. 53-5-2 and 53-5-6. The time period for applying for year's support is shortened to the 24-month period following the decedent's death. The entitlement to year's support in subsequent years, which appeared in former O.C.G.A. Sec. 53-5-4, is repealed.

JUDICIAL DECISIONS

ANALYSIS

  • General Consideration
  • Application Generally
General Consideration

Cited in Cabrel v. Lum, 289 Ga. 233, 710 S.E.2d 810 (2011).

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1868, § 2530, former Code 1933, § 113-1002, and former O.C.G.A. § 53-5-2 are included in the annotations for this Code section.

No one can become a beneficiary merely because he or she happens to be an heir at law of the deceased. Pullen v. Johnson, 173 Ga. 581, 160 S.E. 785 (1931) (decided under former Civil Code 1910, § 4041).

Application Generally

1. In General

An application for a year's support is a suit in a court to recover a right. Nixon v. Nixon, 196 Ga. 148, 26 S.E.2d 711, answer conformed to, 69 Ga. App. 667, 26 S.E.2d 722 (1943) (decided under former Code 1933, § 113-1002).

It is immaterial who makes the application required by statute for the 12 months' support for the family of the deceased, so that the representative of the deceased's estate has notice; therefore, such an application by the temporary administrator and the action of the ordinary (now probate judge) thereon is not void as against creditors. Mackie, Beattie & Co. v. Glendenning, 49 Ga. 367 (1873) (decided under former Code 1868, § 2530).

Widow who acts as executor may apply for year's support. Dunaway v. Clark, 536 F. Supp. 664 (S.D. Ga. 1982) (decided under former O.C.G.A. § 53-5-2).

For whom the widow may act.

- In making the application for year's support the widow may act for herself and the minor children. Farmers Bank v. Williams, 188 Ga. 789, 5 S.E.2d 195 (1939) (decided under former Code 1933, § 113-1002).

Repudiating judgments.

- When widow applied for and was awarded a year's support for herself and her son from the probate court, she could not afterwards repudiate judgments which she secured for their own benefit. Sheffield v. Estate of Sheffield, 172 Ga. App. 469, 323 S.E.2d 679 (1984) (decided under former O.C.G.A. § 53-5-2).

Denial of spouse's petition for year's support improper.

- Probate court erred by allowing the objections of a bank and a decedent's parents solely on the basis of adverse title and by denying a year's support to the widow when the widow failed to meet the resulting burden of proof because the probate court lacked the jurisdiction under Ga. Const. 1983, Art. VI, Sec. III, Para. I and O.C.G.A. § 15-9-30 to determine that the relevant money-market account and real property were not part of the estate; despite the jurisdictional limitation and the lack of an appropriate objection, the probate court proceeded to conduct a hearing as to the amount necessary for the widow's support, thereby inappropriately placing upon the widow a burden of proof that was contrary to O.C.G.A. § 53-3-7(a) and otherwise lacking in the absence of the jurisdictionally defective objections to the petition. In re Mahmoodzadeh, 314 Ga. App. 383, 724 S.E.2d 797 (2012).

2. Qualification of Minor Children for Beneficial Interest

Minor children must be named or described in application.

- In order for minor children to take an interest in property set apart as a year's support, it should in some manner appear in the application that it is made in their behalf; and when it affirmatively appears that the application was made by the widow, and that minor children were not referred to therein by name or otherwise, they take no interest in the property set apart. Farmers Bank v. Williams, 188 Ga. 789, 5 S.E.2d 195 (1939) (decided under former Code 1933, § 113-1002); Gale v. Stewart, 105 Ga. App. 767, 125 S.E.2d 694 (1964);(decided under former Code 1933, § 113-1002).

Names or number of children need not appear in application for year's support.

- In order for minor children to take an interest in the property set apart for year's support it is not necessary that their names appear in application therefore, nor does the fact that the number of the children was not set out affect their rights. Farmers Bank v. Williams, 188 Ga. 789, 5 S.E.2d 195 (1939) (decided under former Code 1933, § 113-1002).

When one who is not mentioned in a year's support, either by name or description, that one can take no beneficial interest thereunder; however, it is not necessary that the names or number of the minor children appear in the proceeding for them to take an interest in the property set apart. Thus, the minor children take a beneficial interest in property set apart under a year's support proceeding in which a named "widow, and . . . minor children" are designated in various portions of the proceeding. Ennis v. Ennis, 207 Ga. 665, 63 S.E.2d 887 (1951) (decided under former Code 1933, § 113-1002).

Year's support to minor child.

- When plaintiff takes no beneficial interest in the property set aside to the widow, plaintiff is not barred, on account of the allowance to the widow, from obtaining a year's support as a minor child of the deceased. Gale v. Stewart, 105 Ga. App. 767, 125 S.E.2d 694 (1962) (decided under former Code 1933, § 113-1002).

3. Independent Application by Excluded Persons

Person excluded from application for year's support may initiate independent proceeding.

- When one person files an application for year's support, another person who is not mentioned in the application can take no beneficial interest in the result of the proceeding. In such a situation, an independent proceeding for year's support would be proper by the one excluded. Collins v. Collins, 110 Ga. App. 569, 139 S.E.2d 459 (1964) (decided under former Code 1933, § 113-1002).

RESEARCH REFERENCES

Am. Jur. 2d.

- 31 Am. Jur. 2d, Executors and Administrators, §§ 332, 333.

C.J.S.

- 34 C.J.S., Executors and Administrators, §§ 452, 453, 471, 472, 477.

ALR.

- Who is included in term "family" or "household" in statutes relating to family allowance or exemption out of decedent's estate, 88 A.L.R.2d 890.


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