The death of an individual who has dependents, such as a spouse, can create a financial hardship for the survivors. Texas law provides a family allowance to help alleviate this type of hardship.
The family allowance is intended to provide for the decedent’s dependents for one year from the date of death.
The allowance can be awarded to a surviving spouse, minor children, or adult children who are incapacitated.
The family allowance cannot be awarded outside of the probate process. It is not available in the non-probate alternatives to formal probate, including the order of no administration or informal administration of community property.
There is no set limits on what amount can be paid. There are also no set factors that can be considered in setting the amount, other than the general rule that the amount is to maintain the dependents standard of living.
The necessity for an award is based on the dependent’s separate property, not his or her community property.
With dependent administrations, the probate court sets the amount of the award. With independent administrators, the personal representative sets the amount of the award.
This is one of the more difficult decisions the independent administrator has to make. Too low of an allowance can lead to disputes, as can too high of an allowance. This is particularly true if the independent administrator is the surviving spouse and there are other non-minor heirs whose inheritance is diminished by the family allowance.
As a practical matter, the claimant is to submit their request by filing an application with the probate court (with dependent administrations) or by notifying the personal representative (with independent administrators). The court and/or personal representative then acts on the application or notification.
The family allowance is a priority claim against the estate, meaning, it is one of the first expenses that are paid. In fact, the family allowance is only trumped only by claims for (1) unpaid taxes owed to the IRS and (2) funeral and last expenses not in excess of $15,000 in aggregate.
The allowance is paid out of the decedent’s one half community property and, if that is not sufficient, his separate property. It is not paid out of the surviving spouse’s one half community property.
The probate court and/or personal representative will usually award a family allowance upon receiving an application or notice from the dependent to request an award. The award can be made before or after the inventory, appraisement, and list of claims is filed for the estate. With dependent administrations, the award will not be made until after a hearing is held and an order is entered.
The application/notice should be provided as soon as possible, as the award may be lost if not ordered or started prior to the time the state is ready to be distributed.
The award can be paid in cash or by delivering property to the dependent or, in many cases, by selling probate property to pay make the award. The probate court and/or personal representative is tasked with deciding what property is to be used to pay the award.
With dependent administrations, the claimant can appeal the probate court’s order. With independent administrations, the claimant can bring suit to have the personal representative removed and/or a suit against the estate and/or personal representative for breach of their fiduciary duty.
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