When someone dies, their will must pass the legal process called probate. While probate can be helpful in ensuring that the will is verified and properly carried out, it doesn’t always account for what is supposed to happen to certain property, namely, surviving spouses.
According to California law, property may pass to a surviving spouse without any administration. However, this can only be possible if the assets in question are jointly titled or personal in nature. But if the asset is only in the name of the deceased or is real property that does not specifically state that it is “with right of survivorship,” a spousal property petition will probably be necessary in order to clear the title to these assets.
Requirements of a Spousal Property Petition
When filing a spousal property petition, the petitioner must include the following:
- An allegation that the assets are to pass to the surviving spouse;
- A description of the property in question;
- A description of property already found to be community property;
- Factual information to support why the property is to pass to the surviving spouse;
- Whether there was a written agreement (this requires an attachment if so);
- The names, relationship, ages, and addresses of those who are entitled to notice; and
- If there is a will, then a copy of the will.
Distinguishing Separate Property from Community Property
While it may be easier to provide factual support for why the property passes to the surviving spouse when there is a will, without one doing so becomes much more complicated. It may require you to distinguish the separate property from community property. Facts that may help in this situation include:
- Marriage date.
- Statement asserting that the down payment money used to buy the asset in question was from a joint account (community property).
- Statement asserting that there was no dissolution proceeding that began.
- Statement asserting that the source of mortgage payments was from a joint account (community property).
- Any other facts demonstrating that the property was joint or community property.
Who is Provided Notice?
As mentioned, notice is required when filing a spousal property petition in California. The individual(s) who are to receive notice vary depending upon the type of legal document. But simply put, notice must be given to all heirs, devisees, named executors, personal representatives, and interest parties of the decedent. It’s important to note that surviving spouses are personally liable for the assets they receive. However, their liability is limited to the debts of the deceased (up to the fair market value of the property received). To provide notice the surviving spouse doesn’t need to publish it. Instead, the petition is prepared and filed with the probate court. The surviving spouse will request one of the following two orders:
- That the property is to transfer from the decedent to the surviving spouse; and/or
- That it is confirmed that the property is already considered the surviving spouse’s community property.
The surviving spouse has the option to choose whether they prefer to file a spousal property petition or go through the full probate process. However, there are pros and cons to each.
Biddle Law Can Help
There’s no doubt that both spousal property petitions and the full probate process can be extremely complicated and confusing. This is why it’s so important to consult with a knowledgeable and experienced California estate planning attorney who has experience with both options.
At Biddle Law, we are here to answer all of your questions and walk you through the legal process. We care about your future and want to assist in protecting your interests. To learn more or to schedule a consultation, contact us today!