Georgia Year’s Support: An Essential Component to Comprehensive Estate Planning

By Kent C. Bailey, Esq., Thrift & McLemore, LLC, September 2, 2018

The death of a loved one is a time of extreme mourning and anguish for surviving family members.  In addition to the grieving process many may worry how they will move forward financially, especially if the deceased was the breadwinner of the family.  While many families are familiar with the need for a will to add financial security in these times, an almost forgotten provision in Georgia Probate Code is often neglected as a tool to care for these loved ones: Year’s Support.

What is Year’s Support? 

Georgia Code Title 53, Chapter 3 – Year’s Support is, despite its name a permanent award to a surviving spouse, minor children, or both.  It is a right to inherit property for these individuals, regardless of what may have been communicated via will, the absence of a will, or the relative position of the majority of creditors.  The beneficiary is generally entitled to receive an amount equaling satisfactory support and maintenance for a period of 12 months for a standard of living that the individual is accustomed to.  This right is not absolute; for if a spouse remarries or dies before filing, or if a minor child reaches the age of majority before filing, this right is lost.  To successfully secure a year’s support claim, a petitioner must file in the probate court in the county of the deceased within two years.  This claim can be challenged by other beneficiaries of the will, and the award will ultimately depend on the court’s discretion.

In Laymen’s Terms

Year’s Support is in actuality an antiquated law that has been on the books in Georgia for decades, dating back to a time when males were the primary provider and females were the primary caregivers within households.  While it holds a dated application in modern society, it is nonetheless an active law that can be very effective for families depending on the situation.  In a nutshell, it is a way to ensure that families of deceased individuals are not left out in the cold due to the decedent’s neglect in creating an effective estate plan, or due to changes in the decedent’s financial situation since the creation of an estate plan.  A properly petitioned Year’s Support claim places spouses and minor children squarely in the front of the line when it comes to divvying up deceased individuals assets, ensuring the family is fed before most creditors or distant money hungry relatives.

Applying Year’s Support Strategically

By terms of a properly executed will in Georgia, an individual would most often have a surviving spouse elect between the right of seeking an award of Year’s Support, or taking the property under the will as it exists.  For decedents facing significant debt at the end of life or blended families, this offers significant flexibility with regards to the estate.

Year’s Support is especially beneficial for families of deceased individuals with high levels of debt relative to assets.  Be it end of life care or some other reason, often times creditors can take the lion-share of an estate leaving surviving family members to fend for themselves.  A Year’s Support election pushes these family members to the front of the line at the expense of said creditors.  This does not include mortgage debt, but does extinguish personal debt such as credit cards, student loans, etc.

Blended families are another area where Year’s Support enjoys high participation.  If a decedent does a poor job of leaving assets to minor children in the event of remarriage, or leaves the very home that a second spouse lives in to his minor children, Year’s Support offers recourse for the aggrieved parties.  While many blended families are able to get along cordially, Year’s Support can be the last bastion of support for others engaged in a nasty probate battle.

Once properly filed, courts generally condone the award of Year’s Support unless an objection is filed by a separate party with an interest in the estate.  If an objection is filed, it is necessary to retain an attorney, as proper accounting of the estate and procedural actions apply.  The likelihood of a successful challenge depends on a number of factors, and is an intensely fact specific inquiry.

Also worth mentioning is that an award of Year’s Support only applies to probate assets.  This means that retirement accounts such as 401k’s, IRA’s, and life insurance policies are exempt unless there is no designated beneficiary.  Similarly, accounts designated as Joint Tenants with Right of Survivorship (JTWRS) become sole property of the surviving individual upon death of the decedent, exempting themselves from reach of probate.

How Can We Help?

Before electing or petitioning for Year’s Support in Georgia, it is worth reviewing the complete fact set with a skilled attorney.  For a self- help guide on Year’s Support in Georgia, click here.  If you have any questions about Year’s Support, or any other aspect of Estate Planning in Georgia, the qualified attorney’s at Thrift & McLemore are here to help.  You can reach Thrift & McLemore by email at [email protected] or by phone at 678-671-4031 to discuss how we can assist you in creating an estate plan that works for you today.

Please visit us on the web at www.thriftlegal.com.

Porsche’s Airport Hotel Is Pampering Dogs with Dinner and Drinks (Credit: Eater Atlanta)

Solis Two Porsche Drive hotel and Apron restaurant are going the extra mile with their menu offerings for dogs flying the friendly skies

Porsche’s posh Solis Two Porsche Drive hotel located at Hartsfield-Jackson International Airport now offers “Sit, Stay, Solis” for guests traveling with their dogs. The Porsche Experience Center hotel provides an in-room dog bed, a dedicated dinner menu, and even a happy hour for dogs at Apron restaurant.

Upon check-in, guests traveling with their dogs will receive a dog bed, crate, and food and water bowls to keep their canines comfortable in their hotel rooms. Owners can then take their pups down to Apron’s dog-friendly patio for a special menu developed by executive chef Derrick Green with treats, ice cream, and “pupsicles.”

Once a month, Apron is hosting “Puptails on the Pawtio” where dogs are treated to grooming and training sessions while their owners listen to guest speakers and attend book signings. On-site adoptions days are also in the works. The next dog adoption day is scheduled for Saturday, August 18 with Lifeline Animal Project.

A $75 non-refundable pet fee is required upon check-in at the hotel. There is no weight limit for dogs staying at Solis Two Porsche Drive. Sorry, only two pets per room.

https://atlanta.eater.com/2018/7/23/17602122/two-solis-porsche-drive-dog-friendly-menu-atlanta

Dealing With The Commercial Foreclosure Process (Borrowers and Tenants)

If a commercial borrower (or commercial tenant) falls behind on commercial building payments (or lease payments), the lender or lessor can declare a default and foreclose on the property.  The execution of a mortgage or deed of trust (or lease agreement) creates a security interest in the property that gives the lender the right to start foreclosure proceedings to force a sale of the property (or eviction) upon the borrower’s failure to pay the loan/lease according to terms.  The good news is that lenders don’t like foreclosures because they’re costly and difficult. The bad news is that lenders won’t hesitate to foreclose on past due loans (or leases) if they aren’t given better options.

If you are a commercial property owner facing foreclosure, or a commercial tenant with a landlord in foreclosure, it is important to keep in mind that there are many legal intricacies involved with foreclosures.  It may be beneficial to employ the services of Thrift & McLemore to help you navigate the process and ensure that you fully understand your rights under the law.

Commercial foreclosures are, in most cases, very similar to residential foreclosures.  The foreclosure may be nonjudicial or judicial depending on the state where the property is located and what the loan documents dictate.  With both nonjudicial and judicial commercial foreclosures, the process starts when the borrower defaults on the mortgage.  A default occurs when the borrower falls behind in payments or fails to do something that the loan documents require.  After the default, the lender may accelerate, or call due, the outstanding balance on the loan.  Typically, the lender must first send a breach letter to the borrower that outlines the reason for default and gives a time frame during which the borrower may cure the default and avoid acceleration.  Usually, the amount of time given to cure a default is thirty days, but this can vary depending on the terms of the mortgage.  Once the time period expires, if the borrower has not cured the default, then the lender may commence foreclosure proceedings.

Tenants’ Rights Following a Commercial Foreclosure

The rights of any tenants in a foreclosed commercial property will depend on the terms of the lease and the date on which the lease was signed.  The tenant’s interest could potentially be terminated by a foreclosure due to the legal concept referred to as “first in time, first in right,” which allows the purchaser of a foreclosed property to void a lease if the mortgage was executed before the execution of the lease.

Many commercial leases contain a subordination, non-disturbance, and attornment agreement, or SNDA.  Under the terms of an SNDA, the tenant agrees to subordinate its interest in the lease to any lender making a loan secured by the commercial property; the tenant agrees to attorn to, or recognize, any new owner of the commercial property as its landlord; and any new owner of the commercial property agrees not to disturb the tenant’s possession of the property as long as the tenant pays rent and complies with the terms of the lease.  For tenants, an SNDA provides some assurance that their rights to their premises will be preserved even if the property is foreclosed.

-Options in Dealing with Foreclosures

The chances are that a commercial building loan is only a part of bigger financial problems.  Rather than delaying, a borrower should develop a game plan to deal with the situation immediately.  Options include:
  • Reorganizing, consolidating or even eliminating debts through proceedings that may include bankruptcy
  • Trying to work out a compromise with the lender
  • Selling the building

-Negotiating with the Lender

A lender may be willing to compromise.  Possible options include the following:
  • Different payment terms (lower payments over a longer period of time)
  • Forgiving some late payments now in exchange for a longer period of payment
  • Lower payments in exchange for a higher interest rate over a longer payment period
  • Refinancing at a lower interest rate (to make payments lower)

-Deeds In Lieu of Foreclosure

If a lender is unwilling to compromise, consider offering to convey the property back to the lender voluntarily by a “deed in lieu of foreclosure” (sometimes called “deed in lieu of forfeiture”).  A lender may be hesitant to accept a “deed in lieu” if state law provides a borrower with a right to redeem property for a certain period of time (e.g., up to a year later).

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