Application to Set Aside Exempt Property, Homestead, and Family Allowance - Texas

APPLICATION TO SET ASIDE EXEMPT PROPERTY, HOMESTEAD, AND FAMILY ALLOWANCE

IN THE [☐ COUNTY COURT ☐ COUNTY COURT AT LAW ☐ STATUTORY PROBATE COURT] OF [COUNTY] COUNTY, TEXAS

1. CAPTION AND CASE INFORMATION

2. APPLICANT INFORMATION

Applicant Name: [APPLICANT FULL LEGAL NAME]
Address: [STREET ADDRESS], [CITY], Texas [ZIP CODE]
Telephone: [________________________________]
Email: [________________________________]
Capacity of Applicant:
☐ Surviving spouse of the Decedent
☐ Person authorized to act on behalf of the Decedent's minor children
☐ Unmarried adult child remaining with the Decedent's family
☐ Adult child who is incapacitated (or person authorized to act on the child's behalf)
☐ Personal representative / independent executor

3. DECEDENT AND FAMILY INFORMATION

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

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

c. Surviving Spouse: ☐ The Decedent was survived by a spouse, [SURVIVING SPOUSE NAME]. ☐ The Decedent left no surviving spouse.

d. Children: The Decedent was survived by the following minor children, unmarried adult children remaining with the family, and adult incapacitated children:

4. COMMUNITY-PROPERTY NOTE

☐ The Decedent and Applicant were married, and the Decedent's estate includes community property. The surviving spouse's one-half of the community estate vests in the surviving spouse and is not part of the Decedent's probate estate; only the Decedent's one-half of the community and the Decedent's separate property are administered here. The exempt-property, homestead, and family-allowance protections requested below apply in addition to the surviving spouse's community-property interest.

5. STATUTORY ENTITLEMENT

6. HOMESTEAD SET-ASIDE REQUESTED — Tex. Est. Code § 353.051(a)(1)

a. Applicant requests that the Court set aside the homestead for the use and benefit of the Decedent's surviving spouse and minor children, described as: [LEGAL DESCRIPTION / ADDRESS OF HOMESTEAD], estimated value $[________________].

b. The surviving spouse asserts the exclusive right to occupy the homestead for life even if the home is the Decedent's separate property, subject to maintenance, taxes, and mortgage-interest obligations.

c. ☐ The estate does not include a homestead; Applicant requests an allowance in lieu of homestead not exceeding $45,000 under Tex. Est. Code § 353.053(b).

7. EXEMPT PROPERTY SET-ASIDE REQUESTED — Tex. Est. Code § 353.051(a)(2)

Applicant requests that the Court set aside all exempt personal property described by Tex. Prop. Code § 42.002(a) for the use and benefit of the surviving spouse, minor children, unmarried adult children remaining with the family, and incapacitated adult children:

☐ Some or all listed articles are not among the Decedent's effects; Applicant requests an allowance in lieu of other exempt property not exceeding $30,000 under Tex. Est. Code § 353.053(b).

8. FAMILY ALLOWANCE REQUESTED — Tex. Est. Code § 353.101–§ 353.102

Applicant requests that the Court fix a family allowance sufficient for the maintenance of the Decedent's surviving spouse, minor children, and adult incapacitated children for one (1) year from the date of the Decedent's death, fixed with regard to the facts and circumstances existing and anticipated during that first year. A family allowance may not be made for a person who has separate property or property in his or her own right adequate for maintenance (§ 353.101(d)).

Basis for amount (monthly maintenance need) and adequacy of separate property:

9. PRIORITY OVER CLAIMS

a. A valid lien on property set aside as exempt is paid or continued against that property if necessary (§ 353.151). If the estate proves insolvent, the surviving spouse and children have absolute title to property and allowances set aside or paid to them, subject to § 353.155, which makes exempt property other than the homestead or an allowance in lieu liable for Class 1 claims (§§ 353.153, 353.155).

b. The family allowance is paid in preference to all other debts and charges against the estate other than Class 1 claims (Tex. Est. Code § 353.104).

c. An allowance in lieu of exempt property may be paid from estate funds or, at the election of the persons identified in Tex. Est. Code § 353.055(a), from appraised estate property. Property specifically devised to another may be taken for that allowance only if other available property is insufficient (§ 353.055(b)).

10. PRAYER FOR RELIEF

WHEREFORE, Applicant respectfully requests that this Court:

a. Set this Application for hearing, if required, and order notice as provided by law;

b. Set aside the homestead for the use and benefit of the surviving spouse and minor children under Tex. Est. Code § 353.051(a)(1) (or award an allowance in lieu of homestead not exceeding $45,000 under § 353.053);

c. Set aside the exempt property itemized above under Tex. Est. Code § 353.051 (or award an allowance in lieu thereof not exceeding $30,000 under § 353.053);

d. Fix and order a family allowance of $[________________] sufficient for one year's maintenance under Tex. Est. Code § 353.101–§ 353.102;

e. Direct the personal representative to pay and deliver the set-asides and allowance with the statutory priority over creditor claims; and

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

11. VERIFICATION

I, [APPLICANT FULL LEGAL NAME], being duly sworn, state that I have read the foregoing Application and that the factual statements I have made in it are true and correct based on my personal knowledge.

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

Applicant Signature: ______________________________________

Printed Name: [APPLICANT FULL LEGAL NAME]

Sworn to and subscribed before me this [____] day of [MONTH], [YEAR].

______________________________________
Notary Public — My commission expires: [__/__/____]

EXHIBIT A — VERIFIED AFFIDAVIT OF CLAIMED EXEMPT PROPERTY

Complete and file this affidavit with an application made before approval of the inventory, appraisement, and list of claims (or filing of the affidavit in lieu), as required by Tex. Est. Code § 353.051(b). An adult child applying under § 353.051(b)(2) may seek set aside of exempt property other than the homestead.

I, [APPLICANT FULL LEGAL NAME], being duly sworn, state from my personal knowledge that I am the [SURVIVING SPOUSE / PERSON AUTHORIZED FOR MINOR CHILD / ELIGIBLE ADULT CHILD / PERSON AUTHORIZED FOR ADULT INCAPACITATED CHILD] of [DECEDENT NAME]. I claim the following property in the decedent's estate as exempt under Tex. Est. Code § 353.051(a):

Add every other item claimed as exempt before signing.

Affiant signature: ______________________________________

Printed name: [APPLICANT FULL LEGAL NAME]

Sworn to and subscribed before me on [__/__/____] by [APPLICANT FULL LEGAL NAME].

Notary public: ______________________________________

Commission expires: [__/__/____] Seal: [NOTARY SEAL]

12. CERTIFICATE OF SERVICE

I certify that on [__/__/____] a true and correct copy of the foregoing Application was served on the personal representative and all interested persons as follows:

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

ATTACHMENTS CHECKLIST:

☐ Certified copy of Death Certificate
☐ Copy of Letters Testamentary / Letters of Administration
☐ Completed and sworn Exhibit A listing all claimed exempt property (§ 353.051(b), if applying before the inventory or affidavit in lieu)
☐ Inventory, appraisement, and list of claims (or affidavit in lieu)
☐ Legal description / deed for the homestead (Tex. Prop. Code § 41.001)
☐ Schedule of monthly maintenance expenses and statement of separate property supporting the family allowance
☐ Community-property characterization schedule
☐ Proof of relationship (marriage certificate; birth certificates of children)
☐ Proof of service / notice as required
☐ Proposed Order Setting Aside Exempt Property, Homestead, and Family Allowance
☐ Filing fee payment