Estate of Herrera

Carr, Smulyan & Hartman, George M. Carr and Leslie M. Hartman for Objector and Respondent.

OPINION

POCHE, Acting P.J.

Probate Code section 6540, subdivision (b)(2) provides in pertinent part: "A parent of the decedent who was actually dependent in whole or in part upon the decedent for support ... may be given such reasonable family allowance out of the estate as the court in its discretion determines is necessary for [his or her] maintenance according to [his or her] circumstances during administration of the estate." [1] We hold that the probate court did not abuse the discretion granted by this statute when it denied a parent's application for a family allowance solely in order that a judgment creditor of the estate could be paid.

The decedent, Paul M. Herrera, died intestate in December of 1987 without wife or issue. His mother, Marie Herrera, was appointed administrator of his estate.

Upon petition of an unsatisfied judgment creditor of the estate, and because Mrs. Herrera had failed to submit an accounting as ordered, the probate court suspended her powers as administrator. The court subsequently removed Mrs. Herrera from that position and found her liable for the…