75-2-405. Source, determination, and documentation.
(1) If the estate is otherwise sufficient, property specifically devised may not be used to
satisfy rights to homestead allowance or exempt property. Subject to this restriction, the
surviving spouse, guardians of minor children, or children who are adults may select property of
the estate as homestead allowance and exempt property. The personal representative may make
those selections if the surviving spouse, the children, or the guardians of the minor children are
unable or fail to do so within a reasonable time or there is no guardian of a minor child. The
personal representative may execute an instrument or deed of distribution to establish the
ownership of property taken as homestead allowance or exempt property. The personal
representative may determine the family allowance in a lump sum not exceeding $18,000 or
periodic installments not exceeding $1,500 per month for one year, and may disburse funds of the
estate in payment of the family allowance and any part of the homestead allowance payable in
cash. The personal representative or an interested person aggrieved by any selection,
determination, payment, proposed payment, or failure to act under this section may petition the
court for appropriate relief, which may include a family allowance other than that which the
personal representative determined or could have determined.
(2) If the right to an elective share is exercised on behalf of a surviving spouse who is an
incapacitated person, the personal representative may add any unexpended portions payable under
the homestead allowance, exempt property, and family allowance to the trust established under
Subsection 75-2-212(2).
Enacted by Chapter 39, 1998 General Session
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Last revised: Thursday, May 28, 2009