Petition for Family Allowance, Exempt Property, and Probate Homestead - California

PETITION FOR FAMILY ALLOWANCE, EXEMPT PROPERTY, AND PROBATE HOMESTEAD

SUPERIOR COURT OF CALIFORNIA, COUNTY OF [COUNTY]

1. CAPTION AND CASE INFORMATION

2. PETITIONER INFORMATION

Petitioner Name: [PETITIONER FULL LEGAL NAME]
Address: [STREET ADDRESS], [CITY], California [ZIP CODE]
Telephone: [________________________________]
Email: [________________________________]
Capacity of Petitioner:
☐ Surviving spouse of the Decedent
☐ Surviving registered domestic partner of the Decedent
☐ Minor child of the Decedent
☐ Adult child of the Decedent who is physically or mentally incapacitated and was dependent on the Decedent
☐ Guardian of minor child(ren) / person having care and custody
☐ Personal representative or other interested person petitioning on behalf of the above

3. DECEDENT AND FAMILY INFORMATION

a. The Decedent, [DECEDENT FULL LEGAL NAME], died on [__/__/____], domiciled in [COUNTY] County, California.

b. Administration of the Decedent's estate is pending in this Court. Letters (☐ Testamentary / ☐ of Administration) were issued to [PERSONAL REPRESENTATIVE NAME] on [__/__/____].

c. ☐ The inventory and appraisal has been filed (affects notice procedure under § 6541). ☐ The inventory has not yet been filed.

d. Surviving Spouse / Domestic Partner: ☐ The Decedent was survived by a spouse / registered domestic partner, [SURVIVING SPOUSE/PARTNER NAME]. ☐ None.

e. Children and Dependents entitled or eligible under § 6540:

4. STATUTORY ENTITLEMENT

The following persons are entitled to a reasonable family allowance under Cal. Prob. Code § 6540(a): the surviving spouse, minor children, and adult children who are physically or mentally incapacitated from earning a living and were actually dependent on the Decedent. The court may, in its discretion, also allow support under § 6540(b) for other dependent adult children and a dependent parent. If an otherwise-eligible person has reasonable maintenance from other sources, the allowance is granted only to those who do not (§ 6540(c)).

5. PROBATE HOMESTEAD REQUESTED — Cal. Prob. Code §§ 6520–6528

a. ☐ Petitioner requests that the Court select and set apart one probate homestead for the use of the surviving spouse and/or minor children.

b. Property proposed as the probate homestead: [PROPERTY ADDRESS], [COUNTY] County, California, legally described as: [LEGAL DESCRIPTION].

c. Character of property: ☐ Community property ☐ Quasi-community property ☐ Separate property of the Decedent ☐ Property held by the Decedent and Petitioner.

d. Requested term of the probate homestead: ☐ For the life of the surviving spouse ☐ For a term of [____] years / until [__/__/____] ☐ Until further order of the Court.

6. EXEMPT PROPERTY REQUESTED — Cal. Prob. Code § 6510

Upon the filing of the inventory or at any subsequent time during administration, the Court may set apart property of the Decedent that is exempt from enforcement of a money judgment (other than the family dwelling) to the surviving spouse and/or minor children. Petitioner requests that the following exempt property be set apart:

7. FAMILY ALLOWANCE REQUESTED — Cal. Prob. Code §§ 6540–6543

Petitioner requests a reasonable family allowance out of the estate, necessary for maintenance of the eligible family members during administration. A family allowance commences on the date of the Court's order (or other date the Court sets, but not earlier than the date of death) (§ 6542) and terminates no later than entry of the order for final distribution or, if the estate is insolvent, no later than one (1) year after letters are granted (§ 6543).

Basis for amount (monthly maintenance need per § 6540):

Other sources of maintenance available to Petitioner (§ 6540(c)): [________________________________]

8. PROCEDURE, NOTICE, AND PRIORITY

a. Notice (§ 6541): For an allowance to a person entitled under § 6540(a), the Court may act ex parte before the inventory is filed; after the inventory is filed, notice of hearing under § 1220 is required. An allowance for a person eligible only under § 6540(b) requires a noticed hearing under § 1220 whether or not the inventory has been filed; notice must also go to each known heir or devisee whose interest would be affected.
☐ This Petition seeks § 6540(a) relief before inventory (ex parte / noticed). ☐ This Petition seeks § 6540(a) relief after inventory (noticed hearing). ☐ This Petition seeks § 6540(b) discretionary relief (noticed hearing).

b. Priority (Prob. Code § 11420(a)): The family allowance is fifth in the estate debt-payment order, after administration expenses, secured obligations to the extent payable from collateral, funeral expenses, and expenses of last illness. It precedes wage claims and general debts, subject to any federal or state statutory preference. The probate homestead and exempt-property set-aside are separate protections under §§ 6510 and 6520 et seq.

c. Appeal (§ 6545): Perfecting an appeal from an order under this chapter does not stay proceedings or enforcement if the person in whose favor the order is made posts an undertaking in double the amount of the payments.

9. PRAYER FOR RELIEF

WHEREFORE, Petitioner respectfully requests that this Court:

a. Set this Petition for hearing (or grant ex parte relief where permitted) and order notice as required by Cal. Prob. Code § 6541;

b. Select and set apart a probate homestead as described above under Cal. Prob. Code §§ 6520–6528;

c. Set apart to Petitioner the exempt property itemized above under Cal. Prob. Code § 6510;

d. Award a family allowance of $[________________] (☐ lump sum / ☐ $[________________] monthly for [____] months), commencing [__/__/____], under Cal. Prob. Code §§ 6540–6543;

e. Direct the personal representative to pay and deliver the allowance with priority over general creditor claims; and

f. Grant such other and further relief as the Court deems just and proper.

10. VERIFICATION

I, [PETITIONER FULL LEGAL NAME], declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed on [__/__/____] at [CITY], California.

Petitioner Signature: ______________________________________

Printed Name: [PETITIONER FULL LEGAL NAME]

11. CERTIFICATE OF SERVICE / NOTICE

I certify that notice of this Petition and the hearing was given as required by Cal. Prob. Code § 6541 and the applicable notice provisions, served on the personal representative and all persons whose interests would be affected:

Signature: ______________________________________
Printed Name: [PETITIONER / ATTORNEY NAME]
California State Bar No.: [________________] (if applicable)
Address: [________________________________]
Telephone: [________________________________]
Email: [________________________________]

ATTACHMENTS CHECKLIST:

☐ Certified copy of Death Certificate
☐ Copy of Letters Testamentary / Letters of Administration (Form DE-150)
☐ Inventory and Appraisal, if filed (Form DE-160 / DE-161)
☐ Schedule of monthly maintenance expenses supporting the family allowance
☐ Schedule of exempt property (cross-reference Form EJ-155 exemptions)
☐ Legal description / deed for proposed probate homestead property
☐ Proof of relationship (marriage / domestic partnership certificate; birth certificates)
☐ Notice of Hearing and Proof of Service (Prob. Code § 6541)
☐ Proposed Order for Family Allowance, Exempt Property, and Probate Homestead
☐ Filing fee payment