FAMILY ALLOWANCE DURING PROBATE

What happens when the wage earning spouse dies? Probate, and settlement of the estate, can take months, or even years. What are the family’s options in the short term?

The decedent’s spouse and minor children can petition the probate court to receive a family allowance. Parents of the decedent and other adult children of the decedent who were dependent in whole or part on the decedent for support may also petition, though the probate court has discretion to grant or not grant the petition.

In determining the amount of allowance for a spouse, the probate court will consider the nature and extent of the spouse’s property. However, even if the spouse’s income from separate property exceeds expenses, some minimal amount will generally be awarded by the probate court. Minor children – including illegitimate children - may receive an allowance separately, even if a spouse is still living.

If the request is make before an inventory and appraisal is filed, a spouse or the minor children may make an ex parte (a hearing within two days of the request being filed) request. After an inventory has been filed, such a request must conform to regular hearing and notice requirements.

The petition should set forth an estimate of the family’s needs; the probate court will set the allowance at an amount necessary to maintain the family according to family’s “circumstances.” (Per Probate Code § 6540(a).) The allowance will be paid from property passing by intestate succession, then from property comprising the residue of a willed estate, and only thereafter from specific bequests. The probate court determines when payment should commence, and payment can be made retroactive to date of death of the decedent, but no earlier. The petition can also request an additional amount to cover attorney fees, since the petition is not part of the regular probate proceedings, and is therefore not automatically paid out of the probate estate.

The family allowance, as a probate estate expense, is given priority over other debts and expenses, except funeral and last illness expenses, and expenses of administration. However, the family allowance constitutes taxable income to the recipient to the extent of the estate’s distributable net income, and the allowance is not exempt from attachment by creditors.

A family allowance generally terminates when the probate estate is closed, although the probate court retains discretion to modify or terminate the allowance.