Tuesday, 21 May 2024

Estate planning: Probate protections allowed to the surviving family

California law protects certain surviving family members of a deceased person in several important ways: temporary possession of the family dwelling and exempt property; a probate homestead set-aside; and a family allowance.


These protections lessen the detrimental impact of lengthy probates and favor a deceased person’s dependents at the time of death over the decedent’s creditors.


Probate protections even favor the surviving family when the deceased person’s will gives his estate go to other persons.


Let’s examine who is protected and how each of these protections work.


Who is protected? The surviving spouse and surviving minor children are the only persons entitled to all of these protections so long as their status remains. That is, so long as the surviving spouse doesn’t get remarried or the minor children don’t reach majority, as relevant.


In addition to the surviving spouse and minor children, the decedent’s adult disabled and dependent children are entitled to receive a family allowance, or maintenance money). Sometimes, at the court’s discretion, the decedent’s dependent adult children and dependent parents may also be granted a family allowance.


Temporary possession of the family home and exempt property is immediately allowed to the surviving spouse and minor children without any court order. This means that they can remain in control of the family dwelling, clothing, household furniture, and certain other property that is exempt from creditor claims.


This temporary possession lasts until 60 days after the inventory and appraisal is filed with the probate court during the administration of the decedent’s probate estate; it can be extended by court order. The protection can last for many months.


A probate homestead set-aside can pickup where the temporary possession of the home ends, and can commence upon the filing of the probate inventory. The probate homestead is itself temporary. It may either last for a short term (such as six months) or a long term (such as the surviving spouse’s remaining lifetime or until the minor children reach majority).


In setting the duration of the probate homestead, the court will usually consider the needs and income of the surviving spouse and minor children, the length of the marriage, and the surviving spouse’s age.


For example, a surviving spouse aged 55 years old, and with limited means of support, may be given a probate homestead for her remaining lifetime.


Lastly, the probate homestead remains answerable to the decedent’s creditors and for any loans secured against the real property (homestead) at the decedent’s death.


The family allowance exists to maintain certain family members during the administration (settling) of the probate estate and is paid out of the decedent’s estate. It is granted a high priority (No. 5) in the order of what expenses and debts the administrator of an estate must pay.


As soon as the administrator has set sufficient funds aside to pay the expenses of administration – such as executor and attorney fees – the administrator shall pay the family allowance.


If more than one person is entitled to a family allowance and one of them has sufficient means to provide for himself, then the family allowance is granted only to those others who lack the sufficient means from other sources.


The family allowance either terminates with the final order of distribution to beneficiaries of the probate estate (at the latest) or earlier.


If the probate estate is insolvent, or has more debts than assets, the family allowance must end within one year of the commencement of the probate administration (i.e., the date when letters testamentary were issued to the executor).


Legal counsel is needed in order to take advantage of these family protections; petitions must be filed with notice to appropriate parties.


Dennis A. Fordham, attorney (LL.M. tax studies), is a State Bar Certified Specialist in Estate Planning, Probate and Trust Law. His office is at 55 1st St., Lakeport, California. Dennis can be reached by e-mail at This email address is being protected from spambots. You need JavaScript enabled to view it. or by phone at 707-263-3235.


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