The Texas Family Allowance: One Year of Support From the Estate

Who it covers

Section 353.101(a) lists three groups: the surviving spouse, minor children, and adult children who are incapacitated. Adult children who aren't incapacitated aren't covered.

Section 353.101(d) rules people out in some cases:

• A spouse whose own separate property is enough for their support.
• Minor children who have enough property in their own right.
• An adult incapacitated child who has enough property in their own right, or whom the person who died wasn't supporting at the time of death.

How the amount is set

The statute doesn't set a dollar figure. Under Section 353.102, the allowance has to cover the family's maintenance for one year from the date of death. The court looks at the family's situation now and what it expects during that first year. It can be paid in one lump sum or in installments, as the court orders.

Once the amount is fixed, Section 353.103 requires an order that states the amount, says how it's paid, and directs the executor or administrator to pay it.

When to apply

Timing depends on the inventory, the sworn list of the estate's property and debts that the executor or administrator files with the court.

If no one applies, Section 353.101(a) has the court fix the allowance right after the inventory is approved, or after an affidavit in lieu of inventory is filed.

To ask for a specific amount, apply before that point. Under Section 353.101(b), the surviving spouse, or a person authorized to act for the minor or incapacitated children, files an application with a verified affidavit. The affidavit describes two things:

• The amount needed to support the spouse and those children for one year after the death.
• The spouse's separate property and any property the children own in their own right.

Where it falls among the estate's debts

Section 353.104 puts the family allowance ahead of every other debt and charge against the estate except Class 1 claims. Under Section 355.102(b), Class 1 claims are reasonable funeral expenses and expenses of the person's last illness, approved by the court and limited by that section. Credit cards, personal loans, and most other bills come after the allowance.

Who receives the money

Section 353.105 tells the executor or administrator where to send it:

• If the spouse is the only eligible family member, the spouse gets the whole allowance.
• If every eligible child is also the spouse's child, the spouse gets all of it, for the spouse and the children.
• If some eligible children aren't the spouse's, their share goes to their guardian, or to another person the court picks for an adult incapacitated child who has no guardian.
• If there's no spouse, each child's share goes to that child's guardian, or to a person the court picks for an adult incapacitated child who has no guardian.

When the estate is short on cash

The spouse or the children's guardian can take estate personal property at its appraised value instead of money, in full or partial payment (Section 353.106). Property the will leaves to a specific person can be used only if other property isn't enough.

If there isn't enough cash and no one wants property in its place, Section 353.107 has the court order estate property sold to raise the money. Our article on selling a house during probate in Texas explains how a court-ordered sale works.

If the executor is independent

An independent executor handles the estate without court supervision. Section 403.001 has the independent executor set aside and deliver the family allowance as if the court had ordered it. There's no separate application to the court.

Common questions

How Legacywyse can help

If your plan follows a dependent administration and you tell Legacywyse the family wants a family allowance, it drafts the application for family allowance from your answers. The applicant signs it before a notary, and it's filed with the probate court before the inventory is approved. In an independent administration, the plan lists the allowance as a step for the executor instead.