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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.It is generally in addition to any other distribution unless there are specific instructions in their will (or “other governing instrument”) stating that the family allowance should not be granted.

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 estate planning, 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 when you call us at (505) 933-7625 or contact us online.

Managing a Family Allowance Probate Case in Albuquerque

Whether you are a personal representative or involved in a probate case being administered in Albuquerque, know that the family allowance could affect your 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, 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 the Bernalillo County Probate Court 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.

Allowance Probate Laws in Albuquerque

In Albuquerque, the Family Allowance is a probate law (NM Stat § 45-2-402) that requires certain family members to receive money from the estate of a deceased person. This allowance is intended to help the family with funeral and burial expenses, as well as the general transition to a life without their loved one, which may encompass other debts and expenses related to the death.

The Family Allowance is a sum of money set aside from the estate to support the surviving spouse and minor children.

The Family Allowance is an essential aspect of estate planning, particularly when there are minor beneficiaries involved.
The surviving spouse and the minors are entitled to a sum of money within the estate that is designated to support them once the primary beneficiary has passed away. Such an allowance allows them to maintain financial stability even without the deceased income while they come to terms with their loss. The allowance is important for any individual looking to provide for their family in the event of their death to ensure they have this provision in their estate plan.

In Albuquerque, the current Family Allowance is $30,000, split between eligible family members.

The Family Allowance in Albuquerque provides a critical source of financial security for families and young children. Specifically, the allowance amounts to a $30,000 one-time payment split between all who are eligible to receive it.
If the decedent has a surviving spouse, then they will receive the entirety of the allowance. If the decedent has no surviving spouse but has minor, dependent children, then the allowance will be split evenly between them.
Since adult children are not entitled to receive the family allowance, a decedent who dies with neither a surviving spouse nor surviving minor, or dependent children will not have the amount deducted from their estate.

The Family Allowance is paid out of the estate’s probate assets, which are those assets that are not exempt from probate.

The Family Allowance is a sum of money that is taken out of the estate, as has been determined by probate. Probate assets are those items which are not exempt from the administration and taxation proceedings; therefore, there may be a deduction made in order to pay out this allowance. In other words, if the estate cannot cover the allowance, then the amount may be reduced or eliminated entirely.
The purpose of the Family Allowance is to ensure that those dependent on the deceased are able to maintain their standard of living due to the lack of support they will experience after the passing of their relative or friend. This need is why the allowance is one of the first things paid out of the estate during probate, prior to creditor claims and the final distribution of assets.

Does a family have a right to say they don’t want allowances to be paid?

No. By the word of New Mexico law (NM Stat § 45-2-402), there is no provision that would allow for a family member or a will document to attempt to avoid the transfer of a family allowance. In fact, the family allowance is considered separate to the will, as it is provided for automatically.

One of the only ways to have a family allowance payment not take place is for the probate estate to technically have “no assets,” as all assets have been placed in trust or in some other instrument capable of circumventing the probate process.

Because of these concerns, individuals engaging in estate planning should account for the family allowance in their finances.

Contact an Experienced Albuquerque Family Allowance Probate Lawyer for Assistance

When dealing with probate law, it is always advisable to seek the counsel of an experienced attorney. In Albuquerque, that means reaching out for advice and assistance when necessary concerning Family Allowance or other aspects of local probate law.
At our firm, we recognize the difficulties posed by issues such as these and are here to guide you through them with professional legal advice. Our attorneys have many years of experience handling cases like yours and remain up-to-date on any changes that could impact your case.
If you have questions about the Family Allowance or other aspects of probate law in Albuquerque, please contact our office at (505) 933-7625 or contact us online for assistance.

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