My client cried when I told her she wouldn't have to lose her home.
Her husband died a few months before and his family was pressuring the
widow to move out and let them sell the home. But the Georgia probate
code gives surviving spouses, and even minor children, a statutory right
to claim the home and a portion of the decedent's estate regardless
of what the decedent's will may say. That rightful claim is called
"Year's Support" based on the idea that the State wants
to protect a widow, widower, or children of the deceased and provide enough
financial support from the estate to allow for at least 1 year of support.
(The estate is defined as all the property, land, accounts, money and
tangible possession that were owned by the now deceased.)
Many people do not know that the widow's right to stay in the home
and gain ownership of the property exists. Often the unexpected death
of a spouse may leave the family in financial peril with creditors of
the deceased threatening to file suit to collect monies that become debts
of the estate.
The special thing about a Year's Support claim is that the right is
written into the law and that claim is superior to a creditor's right
or will beneficiary's right to receive the property claimed. A superior
claim is the claim that will receive the property to the exclusion of
other lesser claims. That means that if both the widow and the credit
card company want to place a claim on the home, the widow will win and
the company will not be able to put a lien on the home. It is important
to note that the widow's Year's Support must be correctly filed
and it can be complex. The support claim must be "elected" or
made by the surviving spouse or children; the State will not inform the
widow of the right. The right to claim support is eventually lost if it's
not claimed in time because the State will not grant the claim if the
claim is not requested.
The surviving spouse and children of the deceased do have some help if
a parent passes away leaving the family in financial peril. The window
of opportunity for the support is limited, so the surviving dependent
family must act fast. The role of the trusts, estates and probate attorney
is to guide and protect the family through the legal process.
This is a decision that should be made carefully and we can help.