MBE Rules · Wills, Trusts & Estates
Family Protection at Probate
Family allowance / exempt property
The rule
Surviving spouses and minor children may claim a reasonable family allowance during administration and set-asides (probate homestead, exempt property) with priority over most creditors.
In plain English
The Family Protection at Probate rule allows surviving spouses and minor children to receive a reasonable allowance during the probate process, ensuring they have financial support. Additionally, they can claim certain properties, like the family home and exempt property, before most creditors are paid.
Worked example
After a person passes away, their surviving spouse and two minor children apply for a family allowance during probate. They are granted a reasonable monthly allowance and the right to keep the family home as part of the probate homestead. This ensures they have the necessary support while the estate is being settled.
Memory hook
Family comes first: they get paid before the bills!
The trap
Students often confuse the family allowance with other estate distributions and may overlook the priority it has over creditors. They might also misinterpret what constitutes 'reasonable' in terms of the allowance.
How examiners test it
Questions on this rule typically present a scenario involving a deceased individual’s estate and ask about the rights of the surviving spouse or minor children in relation to claims against the estate.
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More Wills, Trusts & Estates rules
- Co-Trustees · Cal. Prob. Code § 15620
- Trustee Removal · Cal. Prob. Code § 15642
- Formal Will Requirements · Cal. Prob. Code § 6110
- Spendthrift Exceptions · Cal. Prob. Code §§ 15305-15307
- Ademption of Specific Devises · In re Estate of Newsome (1967) 248 Cal.App.2d 712
- Intestate Succession · Cal. Prob. Code §§ 6400-6414