Brockton area MA Estate Planning Atty.--Discretionary Family Allowance

By
Real Estate Attorney with an Expertise in Estate Planning and Elder Law

The author Brigitte von Weiss of VON WEISS LAW OFFICE is an estate planning lawyer and elder law attorney in Easton, MA.

Website:  vonweisslaw.com

What is the Discretionary Family Allowance?

The Massachusetts Uniform Probate Code (MUPC) became effective as of March 31, 2012.

The MUPC contains certain family protection provisions meant to assist with the immediate support of surviving spouses and children. One such family protection provision is the discretionary family allowance (not to be confused with the exempt property statute). Under § 2-404(a) of the MUPC, the personal representative (person in charge of the estate) has the authority to pay a "family allowance" to the surviving spouse and "minor children whom the decedent was obligated to support and children  who were in fact being supported by the decedent."  

Unless the court orders otherwise, the personal representative's discretionary authority to pay a family allowance is capped at a lump sum of $18,000 or $1,500 per month for a period of one year.  M.G.L. c. 190B, § 2-405.  This family allowance provision allows for assistance to adult children if the adult children were being supported by the decedent.  M.G.L. c. 190B, § 2-404(a).

 

If there is a surviving spouse and the minor or dependent children do not reside with him or her, the personal representative has authority to pay the family allowance partially to the surviving spouse and partially to or for the benefit of any minor or dependent children "as their needs may appear."  M.G.L. c. 190B, § 2-404(a).

Under § 2-404(b) of the MUPC, the "discretionary family allowance is not chargeable against any benefit or share passing to the surviving spouse or children by the will of the decedent, unless otherwise provided, by intestate succession or by way of elective share."

 

The Comment to § 2-404 of the MUPC, states, in part, as follows:

In determining the amount of the family allowance, account should be taken of both the previous standard of living and the nature of other resources available to the family to meet current living expenses until the estate can be administered and assets distributed. While the death of the principal income producer may necessitate some change in the standard of living, there must also be a period of adjustment. If the surviving spouse has a substantial income, this may be taken into account. Whether life insurance proceeds payable in a lump sum or periodic installments were intended by the decedent to be used for the period of adjustment or to be conserved as capital may be considered. A living trust may provide the needed income without resorting to the probate estate. 

 

Obviously, need is relative to the circumstances, and what is reasonable must be decided on the basis of the facts of each individual case.

 

Nothing in this blog should be considered legal advice as this is a complicated area of the law.   

The author Brigitte von Weiss of VON WEISS LAW OFFICE is an estate planning lawyer and elder law attorney serving clients in Easton, MA, as well as nearby towns and cities, including Abington, MA, Attleboro, MA, Avon, MA, Bridgewater, MA, Brockton, MA, Canton, MA, East Bridgewater, MA, Foxboro, MA, Mansfield, MA, North Attleboro, MA, Norwood, MA, Norton, MA, Plainville, MA, Randolph, MA, Raynham, MA, Rehoboth, MA, Rockland, MA, Sharon, MA, Stoughton, MA, Walpole, MA, West Bridgewater, MA, and Whitman, MA.   

Brigitte, a graduate of Boston College School of Nursing and an honors graduate of Loyola University of Chicago Law School, stands out from other elder law and estate planning attorneys in that she worked as a registered nurse for four years and earned a Master of Science in Taxation with high distinction from Bentley College.  This unique combination of legal, nursing and taxation backgrounds enables Brigitte to provide outstanding legal guidance to her clients in their time of need.  Call (508) 238-3005 for a free phone conversation with Brigitte to learn if she can help.  You also may reach her through her website at www.vonweisslaw.com.  

ADDITIONAL RESOURCES: 

The Massachusetts Uniform Probate Code (MUPC)   

Bristol County Family and Probate Court   

Plymouth County Family and Probate Court   

Norfolk County Family and Probate Court 

Alzheimer's Association

National Academy of Elder Law Attorneys

Massachusetts Chapter of National Academy of Elder Law Attorneys

Massachusetts Area Agency's on Aging (AAA's)
  and Aging Service Access Points (ASAP's)

MassHealth form

Bristol Elder Services

Old Colony Elder Services

Hessco Elder Services   

BROCKTON MA  

Brocton MA Council on Aging  

Brockton MA website  

Brockton MA Library  

Brockton MA Enterprise Newspaper  

Brockton MA Community Access  

Fuller Craft Museum in Brockton MA  

Brockton MA Historical Society  

Brockton Arts, Inc. Brockton MA  

ESTATE PLANNING 

AARP estate planning article 

Forbes magazine estate planning article 

Kiplinger magazine estate planning article 

USA newspaper estate planning article  

American Bar Association's Estate Planning FAQ's 

New York Times article on estate planning 

US News article on estate planning 

Fox Business article on estate planning 

Los Angeles Times article on estate planning   

COA'S 

Abington MA Council on Aging 

Attleboro MA Council On Aging

Avon MA Council on Aging 

Bridgewater MA Office on Elder Affairs 

Brockton MA Council on Aging 

Canton MA Council on Aging 

East Bridgewater MA Council on Aging 

Easton MA Council on Aging 

Mansfield MA Council on Aging 

Norton MA Council on Aging 

North Attleboro MA Council On Aging

Norwood MA Senior Center

Plainville MA Council On Aging

Randolph MA Council on Aging 

Raynham MA Council on Aging 

Rehoboth MA Council on Aging 

Rockland MA Council on Aging 

Sharon MA Council on Aging 

Stoughton MA Council on Aging 

Walpole MA Council On Aging

West Bridgewater MA Council on Aging 

Whitman MA Council on Aging

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