Texas goes out of its way to protect a surviving family from being left with nothing while an estate’s debts are sorted out. Two tools — the exempt-property set-aside and the family allowance — put the family ahead of nearly every creditor. Here is how they work.
Exempt Property Set-Aside
The court sets aside the homestead and certain exempt personal property — the kinds of items protected from creditors under Texas law — for the surviving spouse, minor children, and adult incapacitated children. If the estate is insolvent, the family keeps that set-aside property free and clear, even ahead of what a will or intestacy would otherwise direct.
Allowance in Lieu
When the estate has no homestead, or the specific exempt items are missing, the court can grant cash instead:
- Up to $45,000 in lieu of a homestead
- Up to $30,000 in lieu of other exempt property
The Family Allowance
On top of the set-aside, the court fixes a family allowance — an amount sufficient to support the surviving spouse, minor children, and adult incapacitated children for one year from the date of death. Each person’s share is reduced to the extent they have adequate separate property of their own.
Ahead of the Creditors
These protections are powerful because of their priority: they come ahead of general creditors, trailing only the first $15,000 each of funeral and last-illness expenses in the order of payment. When the estate is small enough that the allowance would consume everything, the court can even enter an order of no administration and hand the estate directly to the family.
Frequently Asked Questions
What is a family allowance in Texas probate?
It is an amount the court sets aside for the surviving spouse, minor children, and adult incapacitated children to live on for one year after the death, reduced by their own separate property.
Do these protections come before creditors?
Yes. The exempt-property set-aside and family allowance come ahead of general creditors, and behind only the first $15,000 each of funeral and last-illness expenses.
What is the allowance in lieu of a homestead?
If there is no homestead, the survivors can receive an allowance instead, up to $45,000, plus up to $30,000 in lieu of other exempt property.
Talk With a Texas Probate Attorney
Want to protect a surviving spouse or children during probate? We can help you claim these rights. Call 713-955-6182 or contact The De Leon Law Firm to get started.