When a loved one passes away, the financial burden on the surviving family can be overwhelming. The probate process provides a potential lifeline through what's known as a family allowance. At Texas Horizons Law Group, our probate attorneys often field questions about this crucial aspect of estate administration.
This article aims to demystify the concept of family allowance in Texas probate and provide you with the essential information you need.
How Does Family Allowance Work?
A family allowance in probate is a financial provision designed to support certain family members during the probate of an estate. This allowance is paid from the estate's assets before the final distribution of the deceased person's property. It's meant to help maintain the standard of living for the deceased person's dependents while the probate process unfolds.
Family Allowance in Texas Probate
In Texas, the family allowance is a statutory right provided under the Texas Estates Code Chapter 353. It's intended to ensure that the immediate family of the deceased doesn't face financial hardship in the months following their loved one's passing.
Who Can Receive a Family Allowance?
Under Texas law, the surviving spouse and minor children, as well as adult incapacitated children, may be eligible for a family allowance. It's important to note that not all family members automatically qualify. The key factor is dependency on the deceased at the time of death.
Comparing Family Allowance Across Different Scenarios
Before we go into detail, consider the following table to better understand how family allowance may apply in various situations:
Remember, each situation is unique, and these examples are general guidelines. Consulting with a probate lawyer can provide clarity for your specific circumstances.
How to Request a Family Allowance
The process of requesting a family allowance differs depending on whether the estate is under independent or dependent administration:
If the estate is under independent administration, the request is made directly to the executor of the estate. However, if the estate is under dependent administration, an application must be filed with the court, accompanied by a verified affidavit.
In either case, it's crucial to act promptly, as the right to a family allowance can be waived if not pursued on time.
What Amount Can Be Paid for Family Allowance in Probate?
The amount of the family allowance isn't fixed but is determined by the court based on several factors. According to Texas Estates Code § 353.102, the allowance should be sufficient for the maintenance of the eligible family members for one year from the date of the decedent's death.
Factors considered in setting the amount include:
- The family's standard of living before the death.
- The financial resources of the estate.
- The separate property of the surviving spouse or children.
- Anticipated circumstances during the year following the death.
The family allowance takes precedence over many other claims against the estate. It's only superseded by claims for unpaid taxes owed to the IRS and funeral and last expenses not exceeding $15,000 in total.
Payment of Family Allowances: Texas Probate Law
In Texas, the family allowance is typically paid in monthly installments over a period of twelve months, but it may be paid in a lump sum. The executor or administrator of the estate is responsible for distributing this allowance.
The amount of money available in the estate determines how much can be given to each beneficiary. If there isn’t enough money to pay everyone in full, the money will be divided equally among them.
In addition to the main distribution of assets, Texas law allows for extra payments from the estate to help survivors with things like medical bills and education costs.
When Does Family Allowance Get Paid During the Probate Process?
Understanding where the family allowance fits into the broader probate process can help you navigate this complex time. Here's a simplified overview:
- Death occurs
- Probate is opened
- Executor or administrator is appointed
- Family allowance is requested
- Allowance is approved (by personal representative or court)
- Allowance is paid from estate funds
- Estate administration continues
It's important to remember that the family allowance is just one aspect of probate administration. Other elements, such as paying debts and distributing assets, will continue alongside the payment of the allowance.
