Can My Family Get Money From My Estate After I Die?

Yes.  In the normal course of affairs in a solvent estate (assets exceed debts), a decedent’s personal representative can make interim distributions consistent with the decedent’s Will to the decedent’s spouse or other legatees as are appropriate and needed, either in the personal representative’s discretion if she has nonintervention powers or on order of the court if she lacks such powers.  RCW 11.72.006.

If the decedent’s estate were insolvent (debts exceed assets) at the time of his death, or if the decedent’s Will failed to provide for the surviving spouse or his children by another relationship, the decedent’s spouse can still get funds from his estate, if the request is made timely (for time restrictions, see RCW 11.54.010(3)).  The children not of the decedent’s last marriage may seek a portion of this award if the surviving spouse petitions for an award from the estate, but not otherwise.  In re Estate of Garwood, 109 Wash. App. 811, 38 P.3d 362 (2002).  This award is called a “family support allowance” or “homestead allowance” or “award in lieu of homestead.”  The purpose of the award is to provide for the surviving spouse’s needs (or those of decedent’s children by another partner, under certain conditions) during the pendency of probate.

The amount of the award is the lesser of $125,000 or the value of the decedent's lands and personal property. (RCW 6.13.030).  The amount of the award may be increased or decreased by the court, provided that the recipient has need and the change is not inconsistent with the decedent’s intentions.  The court considers multiple factors, listed at RCW 11.54.040 and 11.54.050, when increasing or decreasing the family support allowance.  If the family support award from probate assets is less than the full allowance, a claimant may petition the court to allow additions sums, which shall also be immune from the claims of creditors, up to the full amount of the family support maximum award.  RCW 11.54.080.  If the family support allowance exceeds the amount of the estate assets, then the court shall close the estate and discharge the personal representative when ordering the family support allowance.  RCW 11.54.100.

Awards for family support take precedence over all other claims against the estate of decedent, with the exception of estate administration expenses, funeral expenses, and expenses of the decedent’s last sickness.  RCW 11.54.030, 11.54.060(1).  The family support allowance is taken free of the claims of decedent’s creditors or decedent’s spouse’s creditors at the time of decedent’s death.  RCW 11.54.070.  If the property in the spouse's possession exceeds the maximum award allowed, the excess remains subject to liens for recovery of long term care costs paid by Medicaid.  RCW 11.54.060(2), 43.20B.080.

If a probate has been filed, all petitions regarding family support allowances must be heard in that court.  If no probate has been filed, any petition regarding family support allowance must be heard in the superior court of the county where decedent lived.  RCW 11.54.090.  If the decedent did not live in Washington State, then the petitions may be brought in any county permitted under RCW 11.96A.050.  Notice and the hearings must conform to RCW 11.96A.080-200.

Family support allowances “can alter the testamentary wishes of the decedent, the intestate succession statutes, and the rights of creditors.  It can also blur the distinctions of community property and probate and non-probate assets.”  In re Estate of Garwood, 109 Wash. App. 811, 817, 38 P.3d 362 (2002).