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Anyone who has lost a loved one in Rio Rancho and who is now acting as the personal representative of the estate must know about New Mexico’s family allowance laws. The family allowance is a mandatory $30,000 payment made to the surviving spouse of the decedent. There is also a $15,000 personal property allowance amount to be aware of. Both payments must be made before any creditor claims or other lower-priority costs are handled.

If you are the personal representative of an estate and are not sure how to handle the family allowance payment, it can benefit you to speak with an experienced probate attorney in Rio Rancho. You may also wish to speak with a local probate lawyer if you are a surviving family member and are having issues recovering the family allowance and personal property allowance to which you believe you are entitled.

New Mexico Financial & Family Law can provide assistance to any individuals who have questions about the family allowance or about managing the estate in general. We have decades of experience assisting families and individuals through the sometimes-confusing process of probate.

Call (505) 503-1637 or contact us online to discuss your case during a no-obligation case review.

What Do I Need to Know About Family Allowance During Rio Rancho Probate?

The most important thing to know about the family allowance is that it takes priority over all other claims, costs, and payouts from the estate. Before assets in the estate can be distributed to heirs according to the will (or intestate succession), the estate must first be probated. During probate, payment of the family allowance is done before anything else. The personal property allowance is also included in this category.

A family allowance is only paid if there is a surviving spouse — or, if there is no surviving spouse, any surviving minor and dependent children. If there is no surviving spouse and there are no children who are minors or who were considered dependents, the family allowance is not paid.

During probate, the personal representative of the estate will be tasked with paying out the allowance as well as estate administration costs, creditor claims, and any disputed property claims. Once all these affairs are settled, probate can be closed, and assets in the estate can be distributed. However, there may be a situation where the estate runs out of funds before all obligations can be met. In these cases, the personal representative must disburse payments in order of priority, with the family allowance coming first.

Anyone who is concerned about limited funds held in an estate or other matters of probate law can refer to a Rio Rancho probate attorney for legal guidance and assistance.

What Is the Family Allowance?

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.

Family Allowance Probate Laws

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.

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 New Mexico Probate, 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 a Rio Rancho Family Allowance 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) 503-1637 or contact us online to schedule a no-risk consultation to learn more.

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