Set Aside Homstead, Exempt Property and Family Allowance

Immediately after the Inventory, Appraisement, and List of Claims of an estate are approved or after the affidavit in lieu of the Inventory, Appraisement, and List of Claims is filed, the executor or the court by order shall set aside:

(1) the homestead for the use and benefit of the decedent’s surviving spouse and minor children; and

(2) all other estate property that is exempt from execution or forced sale by the constitution and laws of Texas for the use and benefit of the decedent’s: (A) surviving spouse and minor children; (B) unmarried adult children remaining with the decedent’s family; and (C) each other adult child who is incapacitated. Texas Estates Code Section 353.051.

If all or any of the specific articles exempt from execution or forced sale by the constitution and laws of Texas are not among the decedent’s effects, the court shall make, in lieu of the articles not among the effects, a reasonable allowance to be paid to the decedent’s surviving spouse and children as provided by Section 353.054 of the Texas Estates Code. The allowance in lieu of a homestead may not exceed $45,000 and the allowance in lieu of other exempt property may not exceed $30,000, excluding the family allowance for the support of the surviving spouse, minor children, and adult incapacitated children.

Also, the executor or the court shall fix a family allowance for the support of the decedent’s surviving spouse, minor children, and adult incapacitated children. The family allowance is to be set in the amount necessary for the maintenance of the surviving spouse, the decedent’s minor children, and the decedent’s adult incapacitated children for one year after the date of the decedent’s death. In setting this allowance the executor and the court are to consider any property that the decedent’s spouse and minor children or adult incapacitated children have in their own right. A family allowance may not be made if the spouse or the children have adequate property for their own maintenance. These are complex decisions. An executor should confer with his or her attorney before setting apart this property.

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