A family allowance is one of the rights granted to certain family members during a California probate.
What is a Family Allowance In California Probate?
A family allowance is a court-authorized amount payable to certain of a California decedent’s family members.
The purpose of the family allowance is to continue, during settlement of the estate, the support of the surviving spouse (or eligible child) that he or she was receiving or was entitled to receive during the decedent’s life. Estate of Wallace, 74 Cal. App. 3d 196 (1977)
Who Is Entitled To A Family Allowance Under California Probate Law?
California Probate Code Section 6540 lists those family members that are entitled to a family allowance and states:
(a) The following are entitled to such reasonable family allowance out of the estate as is necessary for their maintenance according to their circumstances during administration of the estate:
(1) The surviving spouse of the decedent.
(2) Minor children of the decedent.
(3) Adult children of the decedent who are physically or mentally incapacitated from earning a living and were actually dependent in whole or in part upon the decedent for support.
(b) The following may be given such reasonable family allowance out of the estate as the court in its discretion determines is necessary for their maintenance according to their circumstances during administration of the estate:
(1) Other adult children of the decedent who were actually dependent in whole or in part upon the decedent for support.
(2) A parent of the decedent who was actually dependent in whole or in part upon the decedent for support.
(c) If a person otherwise eligible for family allowance has a reasonable maintenance from other sources and there are one or more other persons entitled to a family allowance, the family allowance shall be granted only to those who do not have a reasonable maintenance from other sources.
The family allowance is basically permitted for those family members that relied on the California decedent for support, and who actually need the support. The length of a marriage is not relevant for purposes of determination of a family allowance for a surviving spouse.
How Much is The Family Allowance?
The amount of the family allowance can vary. The statute simply requires that the amount of the family allowance be “reasonable” and as is necessary for maintenance according to their circumstances during administration of the estate.
Who Pays The Family Allowance?
The family allowance gets paid out of the general assets of the estate. A family allowance therefore can interfere with the payment of bequests under the will if the payments go on long enough and deplete the estate assets so that other bequests cannot be paid.
The costs of family allowance proceedings are paid by the estate as expenses of administration pursuant to California Probate Code section 6544
How Long Does The Family Allowance Last?
The family allowance may continue until the judge enters the final order distributing the assets of the decedent’s estate, or, if the estate’s liabilities are greater than the estate’s assets, up to one year after letters of administration are issued to the executor of the estate. California Probate Code Section 6543 states that:
(a) 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.
(b) Subject to subdivision (a), a family allowance shall continue until modified or terminated by the court or until such time as the court may provide in its order.
Pursuant to California Probate Code section 6542, the allowance may not be made retroactive to a date earlier than the date of the decedent’s death.
What is The Deadline To File For Family Allowance In California?
The family allowance must be petitioned for during the estate administration. The California Probate Code imposes different notice requirements in certain situations. For a complete chart of deadlines and timelines in California probate, click here.
Family Allowance For Surviving Spouse, Minor Children, Or Dependent Adult Children
Pursuant to California Probate Code section 6541, if an order for family allowance is made for the surviving spouse, minor children, or dependent adult children, an order for family allowance can be made or modified prior to the filing of the inventory on an ex parte basis or after notice of hearing on the petition.
After the inventory is filed, the order may be made or modified only after notice of the hearing on the petition has been given.
Family Allowance for Other Adult Children or Parent of Decedent
Pursuant to section 6541, an order for the family allowance for other adult children or parents of the decedent may be made only after notice of the hearing on the petition has been given as provided in Section 1220 to all of the following persons:
(1) Each person listed in Section 1220.
(2) Each known heir whose interest in the estate would be affected by the petition.
(3) Each known devisee whose interest in the estate would be affected by the petition.
Can I Appeal An Order Granting or Denying Family Allowance?
Yes. An order of family allowance made during a California probate administration can be appealed.
However, an appeal does not stay the probate proceedings or the enforcement of the order appealed if the person in whose favor the order is made gives an undertaking in double the amount of the payment or payments to be made to the person. See California Probate Code section 6545.