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Albuquerque Family Allowance Probate Lawyers

If you have recently had a death in the family or the death of a close loved one in Albuquerque, then it may be important for you to know about the mandatory “family allowance” that must be granted as part of the division of an estate’s assets.

A family allowance is a required payment to the surviving spouse — or, if there is no surviving spouse, the surviving children — of the decedent. This amount is equal to $30,000 cash value. A family allowance must be granted unless there are specific instructions in their will (or “other governing instrument”) stating specifically that the family allowance should not be granted. The family allowance is granted in addition to any other distributions, transfers, or inheritances described in the will.

Albuquerque probate cases require that the personal representative of the estate (sometimes called an administrator or executor) grant the family allowance before any other costs, claims, or distributions of assets. If you are the personal representative of an estate or otherwise involved in a probate case in Bernalillo County or the Second District Court of New Mexico, it is important to know how family allowance affects probate. In some cases, assets may need to be liquidated to provide the mandatory cash value, or other arrangements may need to be made so that the family allowance is granted.

For more information about family allowances, how they can affect a will, and other details, you can reach out to a family allowance probate attorney. New Mexico Financial & Family Law is located in Albuquerque, and we are ready to assist and advise you in all matters of estate planning, probate law, and other legal aspects of inheritance. Schedule a no-obligation consultation now when you call us at (505) 503-1637 or contact us online.

Managing a Family Allowance Probate Case in Albuquerque

Whether you are a personal representative or someone who is involved in a probate case being administered in Albuquerque, know that the family allowance could affect your intended plans. As part of the probate process for Bernalillo County and the Second District Court of New Mexico, the family allowance must be granted immediately before the administration costs of the estate. Both the family allowance and personal property allowance must be granted during this stage.

Reasonable and necessary estate administration costs follow the two allowances in priority, before any creditor claims or disputing claims are resolved. Once these three priorities are dealt with, then the applicable probate court can allow probate to be closed, and then the remaining assets in the estate can be distributed according to the wording of the will (or another governing instrument).

It is important to note that the personal representative of the estate is solely responsible for satisfying the legal obligations mandated by NM Stat § 45-2-402. They must determine if there is an eligible surviving spouse or, if not, surviving children who are entitled to an allowance. The personal representative must then allocate the necessary funds to cover this expense, prior to any other priorities of the estate listed above. It is also the sole obligation of the personal representative to then cover the remaining priority costs and then close probate once the matters are resolved.

Employees of Bernalillo County and the Second District Court of New Mexico legally cannot provide guidance on how to cover family allowance costs or other matters. This includes the fact that they cannot advise the personal representative on when it is the right time to close probate and begin distributing assets.

As experienced Albuquerque probate attorneys, New Mexico Financial & Family Law can provide seasoned guidance on the financial administration of the estate within the legal boundaries of state, federal, and local laws. We can help you identify the appropriate beneficiaries of the family allowance, allocate funds to satisfy the obligation, or prove that there are no parties to which the family allowance would apply. We can also help you manage other estate priorities and then decide when it is appropriate to close probate. Contact us if you have questions or need assistance navigating the often-confusing realm of managing estates through the Albuquerque probate system.

Family Allowance Probate Laws in Albuquerque

New Mexico law provides a set amount of money from a decedent’s estate for surviving spouses and dependent, minor children. This is called a “family allowance,” and it is given regardless of what other guidance is contained in the decedent’s will. Importantly, this amount is also shielded from creditors, and it will be automatically be deducted from the value of the decedent’s estate.

Family allowances can complicate inheritances in some ways, but they can also simplify the process of seeking a portion of the decedent’s estate as their surviving spouse or children. Most notably, these allowances take priority over other claims on the estate, which can shield this limited amount from contesting family claims or creditor claims.

The family allowance provides up to $30,000 of the decedent’s estate (NM Statutes §45-2-402) to the surviving spouse. If there is no surviving spouse, then the $30,000 will be divided evenly amongst any minor, dependent children. Adult children are not eligible to receive the family allowance.

There will also be a $15,000 personal property allowance, which applies to real estate property holdings as well as automobiles, jewelry, appliances, personal effects, and other holdings (NM Statutes §45-2-403). Like the family allowance, the personal property allowance applies to surviving spouses. Unlike the family allowance, if there is no surviving spouse, adult children of the decedent are eligible to split the $15,000 personal property allowance.

Family Allowance Has Priority, And There Are Little Exceptions

What is remarkable about the family allowance is the fact that it is granted automatically to a spouse or surviving minor, dependent children. The intention of the law is to provide for surviving immediate family members in the event of a death, regardless of circumstances. There is no way to exclude this amount from the inheritance of a surviving spouse, even if a will explicitly tries to do so. This amount is also granted even if there are competing claims, including from creditors. 

The $15,000 personal property allowance offers similar protections for surviving spouses. However, it cannot apply to children who are specifically omitted from a will should no surviving spouse exist. Outside of these circumstances, the property allowance can apply to all surviving children, both named and unnamed in the will, so long as there is no specific language barring them from such. Should there be no surviving children, then the amount may go to the children of the decedent’s intestate heirs.

In the event that the estate does not have assets equalling to $45,000, then the surviving spouse or minor, dependent children can seek out other assets in order to pay the allowances. These may include property held in trust and assets transferred upon death (see NM Statutes §46A-5-505). Again, these allowances are provided before any creditor or other claimant can seek a portion of the estate.

Family Allowances Are Granted by Albuquerque, in Addition to Other Inheritances

A family allowance is applied outside of other inheritance processes. What this means is that the payment is automatic, and then any other inheritances may be granted. If there arises a situation where honoring all inheritances described in a will would leave insufficient value for the allowances, the allowances must be paid first, and then inheritances are honored in order of named (or intestate) priority.

Get Help Understanding the Law From an Albuquerque Family Allowance Probate Attorney

New Mexico law on family allowances is fairly straightforward, but the existence of allowances can complicate other matters. You may be seeking your allowance as a surviving heir who was otherwise denied other inheritances. Or, you may be a personal representative of the decedent’s estate appointed by probate, and you need guidance on how to provide for the family allowances that apply.

In any situation, New Mexico Financial & Family Law is here for you. We are informed and experienced in all matters of probate law, and we also provide assistance with estate planning and trust formation. Give our knowledgeable family allowance probate lawyers a call at (505) 886-9606 or contact us online to schedule a no-risk consultation to learn more.

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