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), § 353.151

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. The homestead and exempt property set aside pass free from and have priority over the claims of general creditors of the estate; if the estate is insolvent, the surviving spouse or child keeps the set-aside property (Tex. Est. Code § 353.152–§ 353.155).

b. The family allowance is paid in preference to all other debts and charges against the estate except funeral expenses and expenses of the last illness (Tex. Est. Code § 353.105).

c. If estate property is insufficient, the personal representative may use property otherwise devised to satisfy an allowance in lieu of exempt property or homestead (Tex. Est. Code § 353.054).

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 and § 353.151 (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], declare under penalty of perjury under the laws of the State of Texas that I have read the foregoing Application and that the matters stated therein are true and correct to the best of my knowledge, information, and belief.

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: [__/__/____]

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
☐ Verified affidavit listing claimed exempt property and homestead (§ 353.051(b))
☐ 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