Understanding the Spousal Probate Property Petition

Probate of a will can be a difficult, time consuming and expensive process. If a deceased party has a will as their estate plan (or no will at all) then generally the will must be probated before it is effective to pass property to the heirs. Under current law, the property left to a surviving spouse outright, without conditions or qualifications, passes to the spouse without the need for a probate administration. This applies whether the person died with a will (testate) or without a will (intestate.) While this may sound attractive circumstances often make this option less attractive.

The probate code has an efficient, regimented and certain process for handling creditor claims of the deceased loved one. If there are outstanding claims then the surviving spouse may wish to take out a probate to avail themselves of the creditor claim statutes to provide certainty as to those creditors asserting claims on the property of the estate. Without a probate then outstanding creditor claims will pass with the property to the surviving spouse who will be responsible for said claims to the extent of the value of the property and personally if the surviving spouse signed the instrument creating the debt or guaranteed it.

Furthermore, many third parties will be reluctant to deal with property passed to a surviving spouse based on claims that the surviving spouse is the lawful owner. For example, if real estate is part of the property passing to the surviving spouse and the spouse wishes to sell the property most, if not all title companies will require some sort of probate or judicial finding that the surviving spouse is the lawful owner. The same goes with many financial accounts and other assets that do not have beneficiary designations. In California, we have the spousal probate property petition to alleviate these concerns.

The proceeding is a summary probate proceeding that seeks a court order confirming property that passes to the surviving spouse. It is important to note that the proceeding does not eliminate claims of the deceased spouse and the surviving spouse must deal with any and all outstanding creditors. The spousal probate property petition can be heard by the court and completed in a much shorter time than a complete probate administration resulting in significant costs to the surviving spouse and in under the right set of facts and circumstances can be a very useful proceeding.

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