October 28th, 2022 in Probate
My husband died without a will and his name is still on title to our house. Do I need to open a probate? The answer may be “no.” When I consult with a surviving spouse, I always consider a spousal petition. It does not work in every situation. When a spousal petition can be utilized, it can be the most economic and effective way to transfer property to the surviving spouse.
California Probate Code 13500 allows for property transferring to the surviving spouse without a probate administration. This section allows for property to be transferred with or without a will where no administration is necessary. If an asset is only in the decedent’s name or titled in community property, then a spousal petition under Probate Code Section 13650 can be used to transfer the property to the surviving spouse.
The petition consists of:
- Allege assets pass to the surviving spouse;
- Describe the assets passing to the surviving spouse;
- Describe why the property is community property;
Describe the facts should pass to the surviving spouse; - Names, relationships and addresses for persons entitled to notice; and
- Allege whether there is or is not a written agreement between the spouses regarding the assets.
The advantage of a spousal petition is it much more streamlined than a formal probate and cheaper. A petition is file with the Court requesting the property transferred from the decedent to surviving spouse or confirming the property is the community property of the surviving spouse. At the hearing, the Court will make a determination about the petition. It’s a simple, straightforward process. If the Court denies the petition, the surviving spouse may need to file a full probate petition. However, it’s always worth considering a spousal petition first and analyze whether it will work for your situation. Sometimes even though a spousal petition is available, it is best to open a probate. Some reason may be because of contentious potential heirs or litigious creditors.
To discuss your options and which is best for your situation, consult with an experienced attorney who can evaluate your case. Many times there is no right or wrong decision, it is about being knowing your options so you can make an informed decision.
