Probate Law

1. Duties Of Personal Representative
2. Steps Prior To Formal Administration Of Estate
3. Claims Against Estate
4. Estate Inventory, Appraisal And Record Keeping
5. Estate Taxes
6. Estate Expenses And Compensation
7. Estate Allowances And Distributions
8. Conclusion

Return to: Introduction to the Process of Probate


Section 7 - Estate Allowances And Distributions

Family Allowance

During the probate of an estate, a surviving spouse and minor children are entitled to a family allowance for their support, commencing with the date of death and continuing until further order of the court. The family allowance is obtained through a petition to the court, which sets the amount to be allowed. If a family allowance is considered advisable, we will take the necessary steps to obtain it. A family allowance will be taxable income to the recipient

Preliminary Distributions

It is not necessary to wait until the estate is ready to be closed before making any distributions. The Probate Code specifically provides for preliminary distributions. However, a preliminary distribution may not be made before two months after the Letters Testamentary or of Administration are issued. If a distribution is made between two and four months after Letters are issued, a bond may be required to protect the rights of creditors. If a distribution is made after creditors' claims are barred a bond is usually not required.

For example, if it were necessary to carry on the decedent's business under court order or to participate in litigation involving the estate, such services would be regarded as in addition to the ordinary services.

You may want to make a preliminary distribution of any cash or other specific bequests provided for in the will. You may also want to make a preliminary distribution of income or principal to establish a trust created by decedent's will. However, as indicated above, income tax considerations may affect the proper timing of distributions and may make it preferable to delay any substantial distributions other than those to specific, demonstrative, and general legatees.

Of course, an appropriate court order is required before you make any distribution.

Final Distribution

When all debts and taxes have been paid and the estate is ready for final distribution, we will prepare for your signature, a final account, report, and petition for final distribution, based on your records or receipts, disbursements, and assets on hand. If all is in order, the court will enter an order approving your account and report and ordering distribution of the remaining estate assets. This ordinarily takes approximately six weeks after the petition is filed. We will then help you distribute the assets and obtain the necessary receipts from the beneficiaries.

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

Copyright 2011 © by Jacqueline M. Skay. All rights reserved. You may reproduce materials available at this site for your own personal use and for non-commercial distribution. All copies must include this copyright statement.

Estate and Trust Law
A Professional Law Corporation

Jacqueline Skay - Attorney at Law

760.745.7576
jskay@estateandtrustlaw.com

Probate Law

1. Duties Of Personal Representative
2. Steps Prior To Formal Administration Of Estate
3. Claims Against Estate
4. Estate Inventory, Appraisal And Record Keeping
5. Estate Taxes
6. Estate Expenses And Compensation
7. Estate Allowances And Distributions
8. Conclusion

Return to: Introduction to the Process of Probate

Section 7 - Estate Allowances And Distributions

Family Allowance

During the probate of an estate, a surviving spouse and minor children are entitled to a family allowance for their support, commencing with the date of death and continuing until further order of the court. The family allowance is obtained through a petition to the court, which sets the amount to be allowed. If a family allowance is considered advisable, we will take the necessary steps to obtain it. A family allowance will be taxable income to the recipient

Preliminary Distributions

It is not necessary to wait until the estate is ready to be closed before making any distributions. The Probate Code specifically provides for preliminary distributions. However, a preliminary distribution may not be made before two months after the Letters Testamentary or of Administration are issued. If a distribution is made between two and four months after Letters are issued, a bond may be required to protect the rights of creditors. If a distribution is made after creditors' claims are barred a bond is usually not required.

For example, if it were necessary to carry on the decedent's business under court order or to participate in litigation involving the estate, such services would be regarded as in addition to the ordinary services.

You may want to make a preliminary distribution of any cash or other specific bequests provided for in the will. You may also want to make a preliminary distribution of income or principal to establish a trust created by decedent's will. However, as indicated above, income tax considerations may affect the proper timing of distributions and may make it preferable to delay any substantial distributions other than those to specific, demonstrative, and general legatees.

Of course, an appropriate court order is required before you make any distribution.

Final Distribution

When all debts and taxes have been paid and the estate is ready for final distribution, we will prepare for your signature, a final account, report, and petition for final distribution, based on your records or receipts, disbursements, and assets on hand. If all is in order, the court will enter an order approving your account and report and ordering distribution of the remaining estate assets. This ordinarily takes approximately six weeks after the petition is filed. We will then help you distribute the assets and obtain the necessary receipts from the beneficiaries.