Kelly

The executor of the estate of Rembert C. Anderson (decedent) appeals the probate court’s denial of a family allowance to the surviving spouse. The controlling statute is Probate Code section 680, which provides that in an insolvent estate, family allowance “must not *1012 continue longer than one year after granting letters.” 1 The probate court, based its denial of family allowance on a finding of insolvency, which in turn it deduced from the existence of civil actions filed by nieces and nephews of decedent (respondents) against the estate for damages in excess of the value of the estate for decedent’s breach of fiduciary duty, constructive trust, conversion, and waste occurring in 1934. The probate court declined to examine the probability of success in these lawsuits, concluding that because these lawsuits had survived law and motion procedures in the superior court the estate was insolvent within the meaning of the statute. The court held: “Because the lawsuit brought against the estate upon the complaints of Margaret Anderson Kelly, Trent G.. Anderson, Jr., and James R. Anderson have successfully completed all law and motion procedure and are at issue, there is, as…