GA Year's Support for Surviving Spouse

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NeedtoKnow2288

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Here's the GA law. My question is below it.

O.C.G.A. § 53-5-4. (Pre-1998 Probate Code) Entitlement of surviving spouse and minor children to year's support for subsequent years


When an estate is to be kept together for more than 12 months, the surviving spouse and minor children of the deceased shall, upon application and proceedings thereon as in the case of an initial year's support, have a year's support for each such additional year that the estate may be kept together, provided that more than three months have elapsed since the last insertion of the notice to creditors required by Code Section 53-7-92 and that there are sufficient assets in the estate to award such additional year's support and to pay all known unpaid debts and claims against the estate.

Father-in-law died in Oct. The will states that the wife (step-mother to my husband) gets house and 12 acres and all personal possessions, including two newer vehicles, everything is free and clear. My husband gets 65 acres of pecan trees with $140 debt on the land and the harvesting equipment with the following stipulations:

Pay his sister $25,000.
Give 20% net profits of the pecans to the step-mother for life.

Because my husband asked her to release him of the 20%, she says she is filing the year's support.

Question 1 : What else can she get by filing this?

My husband and the step-mother are co-executors.

Question 2: How does my husband get things going so that this can be over?
 
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If she is going to release the 20%, the support seems fair. He needs to have an attorney draw up the paperwork becase she basically has a life estate.

If she is delaying closing the estate, that would be cause to deny the support. The next question is which portion of the estate the support is to be deducted from and who decides the amount? Ask the clerk at the probate court how this is handled. They cannot give you legal advice but should tell you the procedure.

If she is not willing to give up the %, the real question in my mind is whether the 20% is even enforceable but that may take a lot of money to find out. He really needs to get out from under this because I see a constant battle over what are "profits." Possibly she may release this provision for a sum certain and take a note and mortgage. Again not something to do on your own.
 
She won't release the 20%.

At the time my father-in-law died, the pecans were on the ground. The attorney who wrote the will and read it to both of them, told my husband that the harvest was his, since he has to make the annual mortgage payment in the spring. So my husband and boys worked every weekend from dawn to dusk to get the nuts up. She is mad because she wants that money. She says it should be hers because they spent money on the orchards during the year.

The will states that the debt to the sister and the 20% cannot hinder my husband's fee simple interest in the property.

But what I don't understand is the law about the year's support. If she already has so much, how can she ask for more and who actually determines what she gets.

Also, the attorney who was helping them to negotiate this (the one who wrote the crazy will) sent us a letter saying to put our recommendations in writing. We did, and that made her mad, too. So that same attorney advised her to file the year's support and told my husband he can no longer work with both of them.
 
Just received certified mail from GA probate court. The step-mother filed the year's support and asked for EVERYTHING. All 77 acres (the 12 he left her and the 65 he left his son); all farm trucks (left to the son); all firearms (left to the son); all tools; everything.

Question: Does this mean the will no longer matters?

Question: The attorney who advised her to file this is the one who advised us to send our proposal to start negotiations. Is he doing his job?
 
I am assuming that hte attorney was representing the estate and therefore both of you. As such, he could advise her of her rights. Once she exercised those rights and the two of you became adverse, he had to withdraw from representation. He can no longer assist either of you.

Your husband needs his own attorney. She may very well have a claim to half of everything and then to the spouse's share of the other half. It depends on what is determined to be marital property. This claim could override the disposition in the will.

The attorney gave you bad advice about the harvest. It was property of the estate and the money should have gone into the estate account. This borders on malpractice. Your husband could charge the estate for the fair market value of the labor. I suggest that you talk to your new attorney about correcting this error. Sounds like he is the cause of the flare up.
 
Thank you so much for your answer!


The farm was my father-in-law's property 20 years prior to their marriage. Does that make a difference?
 
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Maybe and maybe not. The judge will tell you whether it does or not. His/her opinion is the only one that matters and you need an attorney to argue your side.
 
Thanks again. And we do have one now.

I think the general public would be flabergasted to know that a will isn't the final word. Kind of sad really. You go to that trouble and expense to leave your things the way you want them, and then a spouse can renounce the will, which is leaving her property that was never her prior to the marriage, and she can say, "I want more, more, more..."

By the way, the attorney who was representing the estate filed the petition on her behalf. His signature is on it as her attorney. The dates of the notary seals are 2-1-08 and 2-12-08 and then it was filed on 3-6-08. We received a letter from the attorney on 2-21-08 asking for our proposals to come to an agreement. He never informed us he was representing her. We immediately sent the proposals, but also stated that if an agreement couldn't be reached, we would proceed with the will as it was written.

What a mess!
 
I would file a complaint with the state bar. He can't chose one executor over another if he represented the estate. You can also ask the court to have him disqualified. Your attorney probably won't do that however.
 
Update:

We hired an attorney. He filed a caveat with 6 points. He postponed the date of the hearing the Fri before the Mon it was scheduled for. No word to us. We found out by accident. Apparently he had a conflict.

Now the note $155,000 on the 65 acres (left to my husband) is 30 days over due and the bank will foreclose if it's not paid in 10 days.

Several times last fall, my husband asked the estate lawyer (the one now representing the step-mother) about making an inventory of property and a list of liabilities, but he never instructed them to move on this.

There is not enough money from the harvest to even pay just the interest portion of the note. And there are still expenses to come, so some money needs to be left for the management of the farm.

If my husband is awarded the property in probate hearing, he can have the note put in his name and refinanced completely.

My husband has been requesting his attorney reschedule the date, but no answer. Now he has called the probate office to inform them of the possible foreclosure.

QUESTION: If the hearing is not scheduled within the 10 days, is there a way to delay the foreclosure until the hearing?
 
QUESTION: If the hearing is not scheduled within the 10 days, is there a way to delay the foreclosure until the hearing?

A: What did the lender say when your lawyer talked to them?
 
They said the payment must be made unless the land can be put in my husband's name. Then a new loan can be made. The bank had to call our attorney. He never called them like he said he would. I'm asking on here, because we don't seem to be getting anywhere with our attorney.

I'm just wondering if there is any legal way to stop it until the hearing. Our attorney isn't offering much help. This is a small, South GA town where people do things there own way. (We no longer live there.)
 
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