The Basics of Probate

"Probate" is used to describe the legal process by which a deceased person’s affairs are settled and his property distributed to those who are entitled to receive it. This Classroom covers the basic issues involved in probate including the role of a personal representative, the special protections for family members, a review of the intestacy rules, which describe how an estate should be divided when there is no Will and the options to consider when deciding whether "to probate or not to probate." The second section discusses the actual probate process, from filing the probate petition to completing the work as the personal representative.

The Basics of Probate: Special Protections for Family Members


Basics of Probate


Basics of Probate

Special Protections for Family Members

We’ve already mentioned it a couple times, but the law provides special inheritance rights for spouses and children that apply regardless of the terms of a Will. These special inheritance rights are called 1) the elective share, 2) the homestead allowance, 3) exempt property allowance; and 4) the family allowance.

The Elective Share

If the deceased failed to include his or her spouse in a Will, or the surviving spouse is not satisfied with what was left in a Will, he or she may choose the "elective share" (also known as the “forced share”). The elective share entitles him or her to 1/3 of the deceased’s "augmented estate", no matter what the Will provides. The "augmented estate" includes everything in the deceased’s estate at the time of death, plus some property that the deceased transferred prior to death. Determining exactly what property is in the augmented estate can be a very complex process and usually requires the assistance of an attorney.

If special circumstances exist, a surviving spouse can sign a statement giving up his or her right to the elective share. This can only be done after the spouse has been told, and understands, what he or she is giving up, and agrees to it in writing.

The Homestead Allowance

The surviving spouse is entitled to a homestead allowance of $27,000 from the estate. If there is no surviving spouse, the allowance will be divided among any dependent minor children. The allowance can be taken from the sale of land or personal property. If money or other general assets are available to pay the allowance, it will not be taken from items or gifts specifically mentioned in a Will. Otherwise, the homestead allowance will take priority over all other claims against the estate.  

Exempt Property

In addition to the homestead allowance, the surviving spouse (or surviving children, if there is no surviving spouse) is entitled to a $10,000 “personal property exemption” taken from the deceased’s household goods, motor vehicles, and personal effects.

If $10,000 worth of personal property is unavailable, the surviving spouse (or children) is entitled to receive this amount from other property. If money or other general assets are available, this amount will not be taken from items or gifts specifically mentioned in a Will.

The Family Allowance

Lastly, the surviving spouse and minor or dependent children are entitled to a “family allowance” of money from the estate for their maintenance during the period of administration for up to one year. The maximum amount provided under this allowance is $18,000.

Last Review and Update: Mar 30, 2017
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