Probate is the legal process of distributing a person’s assets after they die. In Texas, if a person dies without a will, their assets will go through probate court. The court will appoint an executor to oversee the estate and distribute the assets to the heirs according to state law.
One of the questions that often comes up during probate is whether or not family allowances can be paid out of the estate. Family allowances are payments made to the deceased person’s spouse or children for their support during the probate process. In this blog post, we will explore family allowances under Texas probate law. We will discuss what they are and how they are calculated, as well as when and how they are paid out of an estate.
What is a Family Allowance?
A family allowance is a provision in Texas that allows certain relatives of a deceased person to receive money from the estate to help with living expenses. The purpose of the allowance is to help the surviving spouse and/or minor dependent children maintain their standard of living after the death of a loved one.
A family allowance can be paid to any relative of the decedent who was dependent on the decedent for support and is meant to help with living expenses until such time as the estate is distributed.
How to Get a Family Allowance?
For dependent administrations, the decedent’s surviving spouse or any other person authorized to act on behalf of the decedent’s minor children or adult incapacitated children, must apply to the court to have the court fix the family allowance by filing an application and a verified affidavit. For independent administrations, they have to request it from the personal representative.
Thus, to qualify for a family allowance, the relative must ask for it. With an independent administration, this is done informally. With a dependent administration, one has to make the request with the court and the court will then hold a hearing on the petition, at which time evidence may be presented as to why the relative should receive an allowance and how much should be granted. The court will then make a determination based on this evidence.
How Much is a Family Allowance?
The amount of the family allowance must be sufficient for the maintenance of the decedent’s surviving spouse, minor children, and adult incapacitated children for one year from the date of the decedent’s death. Additionally, the allowance must be fixed with regard to the facts or circumstances and the facts and circumstances anticipated to exist during the first year after the decedent’s death.
The amount of the family allowance is discretionary, but it must be reasonable. Factors that may be considered in determining the amount of the family allowance include:
• The needs of the surviving spouse and dependent children
• The financial resources of the estate
• The financial needs and resources of the surviving spouse and dependent children
Given these rules, the executor (in the case of an independent administration) and the court (in a dependent administration) have wide discretion to set the proper amount.
For children, the court will consider several factors in determining the amount of the allowance, including:
1. The age of the child;
2. The physical and mental health of the child;
3. The educational needs of the child;
4. The standard of living enjoyed by the family prior to the death of the parent; and
5. The financial resources of the estate.
Texas Probate Law on Family Allowances
In Texas, probate law provides for certain allowances to be paid to the surviving spouse and minor children of a deceased person. The allowance is payable in monthly installments over a period of twelve months. The executor or administrator of the estate is responsible for distributing the allowance.
If there is not enough money in the estate to pay all of the allowances, then the allowances must be paid in proportion to the amount of money available in the estate. For example, if there is only enough money in the estate to pay half of each allowance, then each surviving spouse and child would receive half of their entitlement.
Texas law also allows for other payments to be made from the estate for support of survivors during probate administration. These include payments for healthcare expenses and education expenses incurred by survivors after the death of the deceased person.
A family allowance may not be made for:
- the decedent’s surviving spouse, if the surviving spouse has separate property adequate for the surviving spouse’s maintenance;
- the decedent’s minor children, if the minor children have property in their own right adequate for the children’s maintenance; or
- any of the decedent’s adult incapacitated children, if:
- the adult incapacitated child has property in the person’s own right adequate for the person’s maintenance; or
- if at the time of the decedent’s death, the decedent was not supporting the adult incapacitated child.
In conclusion, Texas probate law provides for a family allowance, which can be used to help support the surviving spouse and minor children after the death of a loved one. While these allowances are not mandatory and have to be requested, they can be very helpful in ensuring that the family has enough financial resources to get through this difficult time. If you are considering whether or not to request a family allowance under Texas probate law, it is important to speak with an experienced attorney who can help you understand your rights and options.
Do you need an Experienced Probate Attorney to help?
If you are the executor or administrator of an estate, you may be wondering if you need to hire a probate attorney. The answer to this question depends on the size and complexity of the estate, as well as your own personal preference.
If the estate is small and uncomplicated, you may be able to handle the probate process yourself. However, if the estate is large or complex, or if you feel uncomfortable handling the process yourself, it is advisable to hire a probate attorney.
A probate attorney can help you navigate the complex legal process of probate, and can also provide invaluable advice and guidance along the way. In addition, a probate attorney can represent you in court if necessary.
If you are facing the prospect of Probate Court proceedings, it is important to seek out experienced legal counsel. We understand the ins and outs of Probate Court proceedings, and we will work diligently to ensure that your rights are protected every step of the way. Contact us today for a free consultation. (281) 219-9090.
Our Houston Probate Attorneys provide a full range of probate services to our clients, including helping with disputes between heirs. Affordable rates, fixed fees, and payment plans are available. We provide step-by-step instructions, guidance, checklists, and more for completing the probate process. We have years of combined experience we can use to support and guide you with probate and estate matters. Call us today for a FREE attorney consultation.
The content of this website is for informational purposes only and should not be construed as legal advice. The information presented may not apply to your situation and should not be acted upon without consulting a qualified probate attorney. We encourage you to seek the advice of a competent attorney with any legal questions you may have.