Avoiding Year's Support Litigation in Georgia Using Living Trusts

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In the State of Georgia, the statutory doctrine of "year's support" can utterly defeat some estate plans. The problem can be voided by careful planning and the use of a revocable, inter-vivos trust (also known as a "living trust.")

What is Year's Support?

In Georgia, year's support is the right of a surviving spouse or minor child of a decedent to take property from the estate.

How much property?

That question is not easily answered and is the source of an enormous amount of estate litigation . The technical answer is "an amount sufficient to maintain the standard of living" of the surviving spouse or minor child for one year. Ga. Code Ann. § 53-3-7 (West) It is for the courts to determine how much money or property is needed to accomplish this.

Such determinations are costly and time-consuming exercises in litigation and trial work. They typically involve months of preparation and at least one appeal. Furthermore, experience shows that some (typically non-lawyer) probate court judges in Georgia see year's support as a convenient way of administering an estate and will award all estate property to a petitioning survivor. (Despite settled precedent on the question. See Taylor v. Taylor, 288 Ga. App. 334, 337 (2007)).

A favored right

In any event, there is no way to deprive a spouse or surviving minor child of year's support in a will, by agreement, or otherwise. This is true even if (for example) the spouses have been married for only one year and the will clearly states that only the children from the testator's previous marriage are to receive his or her estate.

Solution: there is no estate

To avoid these problems, one must simply die with no property. Though a seemingly drastic solution, it can be accomplished without also requiring that one's last check bounce. Attorneys use an agreement called a revocable, inter-vivos trust or "living trust" in order to make sure one can enjoy one's property during one's lifetime but have complete say over how it is distributed after one's death.

A "living trust" is defined in more depth at the link below. But the important aspect of the trust for our purposes is that it and not the settlor (the person who made the trust) owns the property. When the settlor dies, the property in his or her estate cannot be taken as year's support because there is no property to take: the trust technically owns it.

Conclusion

In Georgia, where wills are still the predominant method of estate planning, there is nevertheless a fine argument to be made for drafting a living trust in order to avoid the necessity of paying year's support. Even if year's support should be paid and the testator wants to provide for a spouse and minor children, a living trust can allow the testator to establish the amount he or she wants to grant the surviving family and not let it become a matter for costly, emotionally taxing dispute in probate court.

Tanner Pittman, LLC is an estate planning and probate law firm that regularly advises clients on living trusts, year's support, and a range of other complex estate planning questions.

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