Bank Fraud, Phishing and Checksystems Case

Phishing is a cybercrime in which a target or targets are contacted by email, telephone or text message by someone posing as a legitimate institution to lure individuals into providing sensitive data such as personally identifiable information, banking and credit card details, and passwords. The information is then used to access important accounts and can result in identity theft and financial loss. Everyone makes mistakes. Customers make mistakes. Banks make mistakes. Statistics show that phishing generally occurs when someone least expects it. We have found that it is becoming more and more commonplace for online institutions to request sensitive information from customers in order to proceed with transactions.

Several of the institutions researched by this firm do this on a regular basis and legally work, on this basis, with large banks and financial institutions. So, as of 2018, a precedent has been set. While most “old school” customers would never give out sensitive information such as online banking user id’s and passwords, many younger customers are readily doing so for a number of reasons that include, but are not limited to, obtaining credit cards and loans. Simply put, the new “tech savvy” generation is more familiar with doing transactions online than simply approaching an established bank or lending institution.

In a recent case, a customer was approached by an online institution with an apparently known name and legitimate email address. Information was provided. The customer’s bank called days later and informed him or her that they were shutting down their account and reporting them to ChexSystems for fraud because several counterfeit checks had been deposited into their account by “mobile banking.” Chex Systems, Inc. (ChexSystems) is a nationwide specialty consumer reporting agency under the federal Fair Credit Reporting Act (FCRA). ChexSystems’ clients regularly contribute information on closed checking and savings accounts. ChexSystems provides services to financial institutions and other types of companies that have a permissible purpose under the FCRA. ChexSystems’ services primarily assist its clients in assessing the risk of opening new accounts. https://www.chexsystems.com. In this case, no investigation was made as to who actually committed the fraud and now the customer cannot open up any account at that institution ever again and also is blocked from opening up a new account with another bank. The customer had never even used mobile banking before.

Thrift & McLemore’s attorneys are well versed in bank fraud litigation and phishing scams.  Contact Thrift & McLemore by email at [email protected] or by phone at 678-784-4150 to discuss how we can assist you.

Georgia Small Business Debt Collection Suggestions

Georgia Small Business Debt Collection:  It is no secret that the key to running a successful business is a healthy bottom line.  Businesses need profits to continue operating, paying their bills, and their employees.  For small businesses especially, every little bit counts, and it is important to keep an eye on everything coming in and going out.  This is why it can be especially devastating to small business owners when customers do not pay their invoices on time.  These delinquencies can create solvency issues for the business that may ultimately threaten its own ability to pay bills on time.

Some degree of invoice delinquency is simply unavoidable.  Be it a dispute regarding the service performed, solvency issues on behalf of the customer, or just people looking for a free ride – certain customers just do not pay their bills.  There are certainly means to address these customers, but there are also steps you can take as a small business in Georgia to minimize delinquent invoice accounts.

Keep your cool.  It is a natural reaction to become hostile with a customer who will not pay their bill after you have performed a valid service.  While you have every right to be frustrated, taking it out on the customer will be of no service in getting that bill paid.  Once hostility is introduced to the matter at hand, cooperation likely goes out the window.

Stay Organized.  This is critical in dealing with overdue invoices from a customer.  Businesses need to have great documentation of outstanding receivables, including each invoice delivered and the respective due date.  It should also monitor each time the customer received correspondence from the business, and the means by which this was done (mail, email, or phone).  Debt collection law in Georgia can be complicated, and keeping records like this will ultimately help down the road should the dispute turn into a lawsuit.

Remain Diligent.  While you may feel that you are at the mercy of the client, remember that this is a valid debt.  While remaining respectful, you should use every tool at your disposal to be paid for the work you have performed.  Regularly contact the customer.  It may be an honest mistake at first, and simply reminding the customer of the bill does the trick.  This can be done via a quick phone call or resending of the invoice.  If this does not work, you can institute a deadline for payment.

Know your options.  If you have followed all of the steps above and still gotten nowhere, it may be time to hire some help.  Many debts in Georgia can be considered delinquent after 90 days, at which point it is possible to take legal action.  Introducing a collections attorney can help to navigate the legalities of debt collection while turning up the pressure on the delinquent client.  If all else fails, this attorney can file a lawsuit for the debt.  An experienced attorney will be able to walk you through all of the necessary requirements for taking action of last resort.

If you have questions regarding a delinquent debt for your Georgia business and need some answers, let us help!  Thrift & McLemore’s attorneys are qualified in the State of Georgia to collect debts on behalf of their clients.  Contact Thrift & McLemore by email at [email protected] or by phone at 678-784-4150 to discuss how we can help you and your organization collect on your receivables and delinquent debts.

Home Owners: Obtaining Recourse in Georgia from a Failed Home Inspection

Whether you are purchasing your first home or your fiftieth, one of the most important steps in the purchase process is hiring a home inspector.  This inspector will be the one to tell you whether the dream house you recently went under contract on is structurally sound, or contains issues that no longer qualify it as a dream home at all.

Most of us rely on these inspectors to catch every minor detail; after all, that is why you hired them in the first place!  However, what do we do when we have done our research, hired the best inspector we can find, yet defects in the home are still missed?  After all, there is nothing worse than an inspection stating the home you just purchased is in great shape, only to move in and find out that your foundation needs emergency repair, at a great cost.

In the state of Georgia, before immediately taking your grievance to the home inspector, you may have a better claim against the seller.  Although Georgia follows the mantra of “Buyer Beware”, there is a general duty in the state to disclose to would be buyers known defects within the house, especially if they are not easily discoverable.  Sellers could face liability to the buyer for failing to disclose these material defects, so long as it is provable that the defects were known.

Assuming that the seller was not aware of the defect, or there is no proof of fraudulent concealment on their part, then you can look to the home inspector for relief.  There are two general theories to obtain relief from a home inspector from a botched inspection.  Outlined below, these theories are Negligence and Breach of Contract.

Negligence, in any area of the law is generally the failure to act as a reasonable person as someone similarly situated would do.  In this case, if a different home inspector catches the issue at hand (which can be proven by getting a second opinion), then the original home inspector can be found negligent.  The state of Georgia requires all home inspectors to go through in depth training in order to be licensed, so lack of training is no defense.  One thing to consider is that the inspector is only liable to defects within the scope of the inspection.  If the house does not have running water on the day of inspection, the inspector cannot be liable for defects regarding the plumbing in the home.

Breach of Contract becomes a viable claim when the contract that you entered into with a home inspector contains language that you believe was clearly violated.  This could arise when you specifically negotiated to include tests for lead based paint, the inspection came back clean, and you later find evidence pointing to lead based paint in your home.  If you have a contract in writing with the inspector to perform any review, and you can prove that the review was never in fact completed, this would be the proper avenue for legal recourse.

Assuming that you have a valid claim based on the two legal theories above, there are still items to consider.  The home inspector may have inserted a waiver into the contract called an exculpatory clause.  This clause is common among home inspectors, and generally serves to limit liability in the event that defects in the home are uncovered after inspection.  Instead of being on the hook to replace a whole roof, they may simply attempt to refund the home inspection fee.  They may also have an arbitration or mediation provision, which would make it more difficult to file a lawsuit as a first step.

In summary, a failed home inspection in Georgia does not always leave the buyer out in the cold.  There are several avenues to recover losses in the instance that your home inspection did not uncover material defects in your home.  If you are not sure whether you have an actionable case, you should consult with an attorney before taking any action.

If you have questions regarding a home inspection gone wrong, give us a call!  Thrift & McLemore’s attorneys have represented Georgia home buyers seek legal recourse for defects in their homes not caught by the home inspection.  Contact Thrift & McLemore by email at [email protected] or by phone at 678-784-4150 to discuss how we can help you today!

Collecting on your Georgia Commercial Debt through Garnishments

As a creditor in Georgia, and especially one experiencing delinquent debts, your first objective is to pursue any legal means to obtain satisfaction of the debt owed to you.

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There are many ways for creditors to collect this delinquent debt, with varying degrees of difficulty, all of which depend on how hard the debtor intends to fight payment.

The easiest and most commonly adopted approach involves the use of a qualified attorney or debt collection agent.  This individual or entity will begin by sending either a demand letter or otherwise attempting to contact the delinquent debtor to amicably resolve the debt and get the creditor paid.  Unfortunately, this approach has mixed success.

More common in Commercial debt collection matters, due to the sophistication of parties, and contractual nature of the agreements, the creditor must go to court and receive judgement on delinquent debt in their favor, which then entitles them to act in regards to compel payment.  This judgement is a declaration by the court that the debt is valid, and the creditor can now seek to enforce the debt.

The most common tool used by these newly appointed “Judgement-Creditors” is Garnishment.  Georgia Garnishment Law is found in Title 18 Chapter 4 Article 4 of the Georgia Code, and follows the federal rules generally.  Specifics on the process can be found in OCGA 18-4-4 which outlines the process and period of Garnishments in the state.  There are two ways to enact a garnishment on a delinquent debt once judgment has been granted or the debt otherwise perfected.

The most common of these is a Summons of Garnishment, or simply a bank garnishment.  If a bank is served with this garnishment, they must immediately place a hold on the debtors account and may to the court all funds on deposit at the time of service, plus any additional funds that may be deposited into the account within the next 30 days.  After this thirty-day period, the garnishment is no longer in place.

Although less common, Georgia also allows the perfected creditor to garnish a debtor’s wages by way of a Continuing Garnishment.  After receiving service of a Continuing Garnishment, the employer of the delinquent debtor must pay into the court 25% of the debtor’s net take home pay.  This garnishment remains in place for the lesser of 180 days or the full extent of the debt has been satisfied.  Georgia also allows for renewal of this garnishment, but it must be again filed with the court.

Garnishments are generally filed in the Magistrate Court in the county for which the garnishee is physically located.  Costs may vary county to county, but are typically around $50 for filing, plus the cost for summons of service.

If you have questions regarding a delinquent debt of any kind and are at a loss for how to move forward with collecting it, let us help!  Thrift & McLemore’s attorneys are qualified in the State of Georgia to collect debts on behalf of their clients.  Contact Thrift & McLemore by email at [email protected] or by phone at 678-784-4150 to discuss how we can help you and your organization collect on your receivables and delinquent debts.

Freddie Mac will now allow conventional financing for manufactured housing (Credit: Ben Lane HW)

GSE rolls out new manufactured housing financing

Freddie Mac will soon see no difference between certain manufactured homes and traditional single-family housing from a financing standpoint.  The government-sponsored enterprise announced Friday that it is rolling out a new financing program for manufactured housing that will bring conventional financing to factory-built housing.

The program, which is called CHOICEHome, is a two-year pilot that will allow for conventional financing for certain manufactured homes. The homes that will be eligible for the program have features like permanent foundations and pitched roofs.

Many of these homes also come with energy-saving features like Energy Star Qualified Low-E windows, programmable thermostats and minimum insulation values.

According to Freddie Mac, it will treat loans secured by CHOICEHome like loans that are secured by single-family site-built homes.

“If a factory-built home meets certain specifications, it will be granted a CHOICEHome certification and will be eligible for CHOICEHome financing,” Freddie Mac said, adding that its loan products HomeOne and Home Possible will be available for manufactured housing.

Additionally, Freddie Mac said that appraisers will be able to use site-built housing as a comparable for valuation.

The program is part of Freddie Mac’s Duty to Serve plan, which focuses on supporting underserved markets by financing more rural and manufactured housing and preserving more affordable housing for homebuyers and renters nationwide.

“Today’s manufactured homes can deliver outstanding quality at prices that are up to 50% less per square foot than conventional site-built homes,” Freddie Mac noted. “These savings can enable more Americans to own their own home, even in the face of an ever-widening housing affordability gap.”

According to Freddie Mac, to meet the CHOICEHome eligibility requirements, manufacturers and lenders must follow Department of Housing and Urban Development-code guidelines for the construction and siting of the home in order, and lenders must follow local and state guidelines for manufactured housing titled as real property.

“Finding a home is more difficult than ever because of the ongoing housing supply shortage in many parts of the country, especially when looking for a home at a lower price point,” said Mike Dawson, vice president of Single-Family Affordable Lending Strategy and Policy at Freddie Mac.

“Currently there are more than 22 million families living in factory-built housing, and with that number expected to grow, there’s an opportunity for factory-built homes to address the housing supply shortage and quality housing overall,” Dawson added. “This new generation of manufactured housing might just be the best option for first-time homebuyers, Millennials, and empty-nesters looking to downsize.”

(Credit: Ben Lane HW)

If you have questions regarding manufactured housing finance, let us help!  Thrift & McLemore’s attorneys have assisted numerous companies and individuals in this legal field.   Contact Thrift & McLemore by email at [email protected] or by phone at 678-784-4150 to discuss how we can help you.

A Commercial Renter’s Rights in Georgia (Credit: Kristy Borowik, bizfluent)

Residential tenants have more rights than commercial renters in Georgia. Unfortunately the landlord has more rights when it comes to commercial property lease agreements. The key to understanding any tenant’s rights is in the lease agreement, which Georgia recognizes as a legally binding contract. Unless something in the lease is illegal, any tenant’s rights are limited by the language in the lease agreement, so it is crucial for all tenants to understand their lease agreements before signing.

Shared From https://bizfluent.com/info-8412291-commercial-renters-rights-georgia.html

Before Signing the Lease

The potential commercial tenant has the right to request a subordination, non-disturbance and attornment agreement, which requires a lender to honor a tenant’s lease in the event of foreclosure on the leased property. If the landlord’s lender does not want to sign an SNDA agreement, the tenant might want to find another property to lease.

All potential tenants should inspect the property before leasing and have a lawyer look over the lease agreement before signing.

Privacy Rights

Residential tenants have the right to privacy in the rental property. The landlord must give ample notice before entering the property and enter only at a reasonable time and for a legitimate reason. The same is not true with commercial property. Landlords may enter a commercial property whenever they want, as long as they do not interfere with the commercial tenant’s business.

Insurance

Georgia requires the landlord of a commercial property to insure the property against fire and other basic risks. The commercial tenant has the right to request proof of insurance before paying rent. However, the tenant is responsible for liability insurance.

Unpaid Rent

The landlord may lock out a commercial tenant for not paying rent. This is different with residential tenants, as the landlord may need a court order before locking them out. Commercial tenants do not have the right to the leased property as they would residential property. Further, a landlord may sell the commercial tenant’s property to cover back rent.

Disputes

Georgia does not have a governmental agency that settles dispute between landlords and tenants or that has the power to force either party to behave in a particular manner. If commercial tenants cannot resolve a dispute with a landlord on their own, they must use the courts, either directly or through a lawyer, to enforce their legal rights.

If you have questions regarding commercial landlord/tenant law, let us help!  Thrift & McLemore’s attorneys have assisted numerous companies and individuals in the legal field.   Contact Thrift & McLemore by email at [email protected] or by phone at 678-784-4150 to discuss how we can help you.

Intestacy in Georgia – Dying without a Last Will and Testament

Preparing for the end of one’s life is something we all know that we should do, however according to AARP, the majority of Americans stop there.  According to the study, which relies on a survey from caring.com, only 4 in 10 American adults have made good on the task and have any type of estate planning document.  As is the case in most states, Georgia residents who die without a will, or intestate, rely on the states distribution scheme to disperse their assets to surviving loved ones.

Many individuals may think that because such a plan exists with the state that they are off the hook, or that their affairs are adequately taken care of.  What may be surprising to residents in Georgia is that the laws governing intestate succession may not be what most of us would logically think would happen.  What’s more, these guidelines don’t necessarily fulfill what the majority of citizens would prefer, especially when it comes to their surviving spouses.

Lawyer Atlanta GA

Before you concern yourself with who will get what if you die without recording a will, you need to know which assets will be affected.  These assets are referred to as probate property, and few know that it doesn’t apply to the entirety of their net worth.  Real property and bank accounts held solely in the name of the deceased individual are considered probate property, but there are many other accounts that are not.

These include things such as life insurance proceeds, funds in IRA’s, 401k’s, co-owned property, and joint bank accounts.  The inheritances of these assets are controlled by beneficiary designations within the account or payable on death clauses among joint owned accounts.  This is important to note because while significant portions of wealth for the average individual is tied to retirement accounts controlled outside of probate, the home is often times just as significant an asset in terms of an individual’s net worth, and it must go through probate in the absence of a trust.

Armed with a working knowledge of which assets the state will ultimately disperse to your loved ones, you can think about how they will divide these assets up.  Because all families will vary to the extent of living relatives such as spouses, children, parents, and siblings, there exists a table that determines the degree of relation called the Table of Consanguinity.

This table effectively rates the order in which your assets will be dispersed.  It goes all the way to third cousins if no heirs can be found, but the general order in which relatives will inherit is: spouse, children, parents, siblings, and then grandparents.  The first in line takes to the exclusion of all others, meaning that if there are living children, they inherit all assets before the parents get a penny.  In most states, all assets go directly to the spouse first.  In Georgia this is also true if the deceased has no children, but deviations occur from here.  Below lays out a few of the more common scenarios with how intestate assets are distributed in Georgia.

  • Survived by a spouse with no children – all assets are inherited by the surviving spouse.
  • Survived by children with no spouse – all children inherit equal shares, per stirpes, of the assets.
  • Survived by a spouse AND children – Spouse and children inherit equally as if the spouse was one of the deceased children. There exists a qualifier here that the surviving spouse will receive no less than one third of the estate.  This means that up to two children, the spouse and children receive the same share, but if three children exist, their share is reduced to the extent that the surviving spouse takes a one third share.
  • Not survived by a spouse OR children – If there exist no living spouse or children at the time of death, all decedents assets go to grandchildren in the shares that their parents would have inherited. If no grandchildren exist, then the decedent’s parents inherit the assets.  Should the parent’s also be deceased, then any siblings would take in equal shares.

While the Table of Consanguinity and the per stirpes scheme of distribution seem logical, the hang-up for many is the distribution given to a surviving spouse with children.  Many hope to give all assets to their surviving spouse in the hopes that those same assets go to the children after the spouse’s death.  This is to ensure that he/she was provided for during the rest of their lifetime.  If you are a resident of Georgia and this distribution scheme is something that you wish to avoid, you absolutely MUST execute a will or the state scheme will control the transfer of your assets.

If you have questions regarding a Last Will and Testament or what probate instrument is right for you, let us help!  Thrift & McLemore’s attorneys have assisted numerous Georgians develop estate plans specific to their goals.   Contact Thrift & McLemore by email at [email protected] or by phone at 678-671-4031 to discuss how we can help you and your family set your affairs in order today.

Does Your Georgia Small Business Qualify as a Disadvantaged Business Enterprise (BDE)?

Select small business owners located in Georgia take note.  There is a network of programs that exist within the state that offers Disadvantaged Business Enterprise (DBE) certifications to those businesses who are majority owned by individuals considered to be socially or economically disadvantaged.  Certification with the state brings undeniable benefits by offering a distinct leg up to these businesses, who may be vying for state contracts with administrative organizations such as MARTA and the Georgia Department of Transportation (GDOT).

The underlying goal of the programs are to offer greater exposure of certified minority companies to state and local officials as well as private sector suppliers in an effort to increase subcontracting opportunities for these companies.  Said certifications are granted to a diverse group of businesses, including but not limited to traditionally disadvantaged classes such as women, minorities, veterans and service disabled veterans.

The authority for these programs is vested under state law O.C.G.A. § 48-7-38 which states, “When computing the taxable net income of a Georgia base corporation, partnership, or individual, there shall be subtracted from federal taxable income of federal adjusted gross income 10 percent of the amount of qualified payments to certified minority subcontractors.”  This essentially amounts to the state rewarding organizations that do business with certified DBE’s through tax incentives on the amount of services paid.  This 10 percent is material to organizations awarding large scale contracts.

To qualify, the potential applicant simply need be a for-profit organization that is at least 51% owned and operated by a socially or economically disadvantaged class and based in Georgia.  From here the application process is based on the location in Georgia in which the business in located.  The Georgia Unified Certification program (GUCP) is available to all members within the state except for Fulton, Dekalb, or Clayton counties.  These counties are certified separately through the Metropolitan Atlanta Rapid Transit Authority (MARTA).  The Unified Application can be found here.

In addition to the statewide program, the city of Atlanta, through the Office of Contract Compliance offers two more programs for the same class of individuals.  These programs are the Equal Business Opportunity (EBO) and Small Business Opportunity (SBO).  While the qualifications of these programs are slightly different than GUCP, the underlying goal is the same, to certify qualifying entities and offer them increased access to work within the city of Atlanta.  The applications for these programs are available here.

Finally, another program available to a more selective class of individuals on the basis of ethnicity is available as a Minority Business Enterprise (MBE).  This program is only available to existing and certified DBE organizations, and operates as a separate certification.  This program supports to these businesses through offering education, networking, and additional resources for all certified members.  The only additional requirement over DBE certification is that the owner of such business be a minority.  This application is located here.

If you have questions regarding these programs or whether you qualify, we are more than happy to answer them.  Thrift & McLemore’s attorneys are well versed in the qualifications and necessary paperwork involved with becoming a DBE in Georgia.   Contact Thrift & McLemore by email at [email protected] or by phone at 678-671-4031 to discuss how we can assist you with the application process and get you on your way to being a registered Disadvantaged Business Enterprise today!

Is a Shift to Commercial Real Estate on the Horizon?

A snapshot of the downtown Atlanta skyline reveals a construction boom, flourishing with cranes and even more new high rises.  This is only logical, as the ten year rebound in the real estate market has sharply increased the demand for top end real estate.  According to Collier’s International, commercial vacancies in 2017 were the lowest they’ve been since the recession.  It would seem that these buildings can’t go up fast enough.

The consequence to this seemingly unending demand for commercial space is the equally aggressive prices of rent.  As commercial construction projects typically lag the economic recovery, this pent up demand creates ascendant price fluctuations until new office buildings can come online to alleviate demand.  Indeed, Colliers reports that average rent prices increased by 7% alone last year.  Class A luxury commercial real estate increased 17%.

While it is encouraging to see so much new commercial construction around the city, Colliers again accounts that the majority is in high end markets, signaling that rental prices will only continue to rise.  In a booming market, this can be seen as healthy, but as with residential, every market has its limits.

Douglas Sams, Commercial Real Estate Editor for the Atlanta Business chronicle reported yesterday that while commercial rental activity remains high, consolidations are beginning to take hold which could slow the market.  Mr. Sams breaks that AT&T, with offices in downtown and midtown, expect to vacate three buildings in Atlanta, moving operations into existing offices in an effort to save on outsized rental costs.  Consolidation of such a large Atlanta business brings pause.

Ken Ashley, Executive Director and Cushman and Wakefield, cites shifts in the traditional commercial real estate paradigm as a way that companies are coping with outsized rents.  “City Center” projects outside the perimeter are gaining steam, with projects like The Battery in Smyrna, or Avalon in Alpharetta.  Ashley states this is a good way to maintain urban environments, while taking advantage of more plentiful and affordable land.  Still he says upward price pressure will begin to take its toll, positing that subleases of space will accelerate as the needs of companies are no longer adequately met or are overburdened by the cost of the real estate.

While there are no indications on a hard stall with regards to the Commercial Real Estate market, as the ever increasing price tag for quality office space continues to rise, more and more individuals find them financially stressed and in some cases over leveraged.  For companies facing this situation, it is important to understand their options.

As this unprecedented market boom nears its cyclical end, commercial foreclosures occurrences undoubtedly will find themselves back on the rise.  After so many years of strong growth, some market stagnation is surely expected, and has already been seen on the residential side.  Whether you are a commercial landlord or a commercial tenant, in order to protect your interests you should at the very least have a functioning knowledge of commercial foreclosure.

Commercial foreclosure operates similarly to residential foreclosure in Georgia.  Georgia law allows non-judicial foreclosure is legal meaning that when the borrower defaults on the mortgage, either by falling behind on payments or failing to abide by the terms of the agreement, the lender can accelerate the loan and commence foreclosure without the intervention of the court.  This can speed up the process of foreclosure and catch many affected off guard.  The need for awareness applies not only to owners of commercial real estate, but tenants’ rights are also affected.

Before allowing your organization to find itself on the wrong end of these proceedings, you absolutely must speak with competent counsel who can educate you with regard to your options.  Thrift & McLemore’s attorneys have made a career in the commercial real estate arena and can help with your exact situation.   Contact Thrift & McLemore by email at [email protected] or by phone at 678-671-4031 to discuss how we can assist you with protecting your rights and keeping your commercial property or rental out of foreclosure today.

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.

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