The Georgia Probate Code provides that the provision of year's support for the family of a decedent is a necessary expense of Estate administration and is preferred before all other debts. O.C.G.A.§ 53-3-1(b). The surviving spouse and minor children of a testate or intestate decedent are entitled to year's support in the form of property for their support and maintenance for the period of 12 months from the date of the decedent's death.
If a testator makes provision in his or her Will for the spouse in lieu of year's support, then the spouse must elect against the Will. O.C.G.A.§ 53-3-3.
The petition is filed in probate court and must be filed within 24 months of the date of death of the decedent. O.C.G.A.§ 53-3-5.
Interested parties are served with the petition. If there is no objection, then the petition is granted. If an objection is filed, then the probate court shall hear the petition and, upon the evidence submitted, shall determine the property to be set aside taking into consideration the following: (1) The support available to the individual for whom the property is to be set apart from sources other than year's support, including but not limited to the principal of any separate estate and the income and earning capacity of that individual; (2) The solvency of the estate; and (3) Such other relevant criteria as the court deems equitable and proper. The burden is on the petition to prove the amount necessary. O.C.G.A.§ 53-3-7.
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