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Protection of the Immediate Family

Protection of the Immediate Family

One of the main purposes for making and leaving a will is to guide the administration of the estate of the testator–the person who made the will. A will should be written in language that is clear and indisputable. Alas, the language in a will may be unclear or vague. This article discusses will interpretation doctrines designed to protect the testator’s immediate family from mistakes, or apparent mistakes, by the testator.

State Statutes

When a testator dies, his or her immediate family needs some protection from the shock and time to plan their way out of their change in circumstances. All states have at least some statutes designed to protect the immediate family of the testator for a reasonable period of time after the testator’s death. As a general rule, surviving spouses are not left with nothing, even if the testator attempted to disinherit his or her surviving spouse. The testator’s surviving spouse is either granted a right to elect against the testator’s will or granted certain community property rights. Most states provide a variety of practical benefits to the testator’s surviving spouse and surviving minor children.

Money

Most states permit the testator’s surviving spouse or surviving minor children to take an allowance in the form of money from the testator’s net estate in order to meet their current living expenses.

Homestead

Most states permit the testator’s surviving spouse to the live in the primary residence of the testator, sometimes known as the mansion house, for up to one year rent-free. There may be a homestead statute that permits a surviving spouse and surviving minor children to live in the primary residence of the testator, free from the claims of the testator’s creditors, until the last child reaches the age of majority. Obviously, such statutes give the testator’s surviving spouse and surviving minor children time to plan where their next primary residence will be.

Automobile

Another benefit commonly granted to the testator’s surviving spouse by statute is permitting the testator’s surviving spouse to select one of the automobiles of the testator that has not been specifically bequeathed by the testator in the testator’s will. Obviously, such statutes give the testator’s surviving spouse and surviving minor children a means to move to their next primary residence.

Other Allowances

States may permit the testator’s surviving spouse or surviving minor children to take allowances other than money from the testator’s net estate. States may declare that clothing, furniture, and other personal effects are exempt from the testator’s estate.

Your Lawyer

The practical benefits to the testator’s surviving spouse and surviving minor children vary from state to state. Your lawyer can advise you as to the benefits available in your state.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.

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