Q: My husband just passed away. He did not have a Will or Trust, and our home was his separate property from his prior marriage. His son is now anxious to sell the home in order to receive his inheritance share, but that would force me out of the home with nowhere to go. Do I have any rights?

A.  Yes, you do! There are two important rights of which you should be aware: the Probate Homestead and the Probate Family Allowance. These key provisions of probate are designed to safeguard the interests of surviving family members, and together they play an important role in providing financial protection and stability to them during this time of transition.

Probate Homestead

The probate homestead provides a valuable shield for you and any minor children by allowing you to claim your husband’s home as your “homestead”, with the right to continue to reside in the home. This right is liberally construed and favored by the law. In ruling on the request for a Probate Homestead, the court has discretion to determine the proper conditions and appropriate duration of this homestead. Such conditions can include the assignment of other property owned by your husband to his son or other heirs or devisees, i.e. as a kind of “ trade – off” so, as here, the son might receive other items of value from his father’s estate while you continue to reside in the home. The court will also set the duration of the Probate Homestead in its order, and this can be as long as your own lifetime if the court determines that your financial and shelter needs so require. However, if you later remarry, it is likely that the homestead would then dissolve.

Probate Family Allowance

Another feature of the probate process is your right to request a probate family allowance, a feature designed to provide immediate financial assistance to you and surviving family members during the administration of your husband’s estates. This provision can ensure that you, as the surviving spouse, will have access to a reasonable allowance from your husband’s estate to support yourself during administration. This allowance can help cover essential expenses such as expenses related to the home, utilities, food, and other necessities during the probate process.

If your husband’s estate is solvent, the court has wide discretion in determining the duration of a family allowance, but it must terminate no later than the entry of the final order for distribution of his estate, which could very well be a year or more from the beginning of the probate process.

Some local court rules, however, require that it be of limited duration, and require additional petitions in order to extend the duration of this allowance. These are all matters that you should discuss with your attorney.

In conclusion, the Probate Homestead and the Probate Family Allowance serve as essential safeguards for surviving spouses and minor children, providing a place for them to continue to live, and for immediate financial assistance in their time of need. These provisions can play an important role in ensuring your own well-being during and even beyond the probate process. Be sure to discuss these matters with your attorney as soon as possible.