Caring For Dependents During Probate Administration- Family Allowance to Minors
Distribution of assets during probate requires that specific processes be followed. In California probate proceedings, a family allowance distribution occurs during the course of probate and allows for distribution to meet the needs of minor children of the decedent.
Right to Receive Family Allowance:
Under Probate Code §6540, the court is required to issue order a family allowance to meet the needs of minor or incapacitated children of the decedent. This family allowance is designed to lessen the economic hardship of those the decedent had a duty to support or actually supported while the decedent’s estate is administrated. The right to receive a family allowance depends on “the claimant’s right to support at the time of decedent’s death and the existence of a statutorily specified relationship between the claimant and the decedent,” and this right is independent of heirship or the decedent’s testamentary intentions. Family allowance is strongly favored by the courts as a matter of public policy. Family allowance may be petitioned for any time during probate.
Timeline for Family Allowances:
If the petition is submitted after DE-160 Inventory is filed, a noticed hearing is required. Under Probate Code 6543, “A family allowance shall terminate no later than the entry of the order for final distribution of the estate or, if the estate is insolvent, no later than one year after the granting of letters.” Further, a family allowance may commence on the date that the Court so orders. This may include dates retroactive to the court order but not to a date before the decedent’s death.
Amount of Family Allowance:
The amount of the family allowance is determined by the Court and is the amount that the Court determines to be reasonable to provide for the family and as necessary for the maintenance of the recipients according to the circumstances. The recipients other income and other property may be considered but be the sole determining factor in in denying a family allowance.
It is important to note that granted family allowances do not count as a credit toward inheritance and the allowances can be of great help to families struggling with the recent passing. Experienced legal counsel can be of great assistance in assisting dependents and estate executors in petitioning the court for family allowances, arranging for receipt of such allowances, and protecting assets subject to the allowance.
