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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...
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What Do I Need To Know If I Go To Pobate Court In Santa Clara County?

If you are attending Probate Court in Santa Clara County, the courthouse is located at 191 North First Street in San Jose.  Parking can be difficult so allow plenty of time for parking.  There is a public parking garage near the courthouse if you are unable to find street parking.  If you are able to find street parking, it will be metered parking.  Once you make it to the court house, you will need to pass through security.  Take the elevator to the fourth floor.  The Probate Court is currently held in Department 12.  

On the wall opposite of the double doors to the courtroom is a bulletin board.  The day's calendar is hung on the bulletin board.  For each calendar session, there is a listing of the probate cases to be heard in that session.  On the sheet of paper hanging on the bulletin board for the 9:00 calendar, there will be a  listing of cases that includes the line number, time, case number, name of the case and the...

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My Siblings and I Cannot Agree. Who Has The Right to Control The Final Disposition of My Mother?

Family disputes occasionally arise over funeral arrangements.  This may be due to family disharmony, religious, monetary, or other reasons.  If a dispute arises over the final disposition, the best thing to do is see if the matter can be resolved by settlement.  

If the matter cannot be resolved through a settlement or agreement, California Health and Safety Code Section 7100(a) governs who is in charge.  The following people, in this order, have the right to control the decedent's remains:

  • An agent under the power of attorney for healthcare;
  • Decedent's competent spouse;
  • Decedent's competent children;
  • Decedent's surviving parents;
  • The surviving adult persons in the next degree of kinship; and
  • The public administrator when there are sufficient assets.

If you and your siblings cannot agree on what happens to your mother's body and your mother did not have written instructions (and there is no surviving spouse), the majority of her children are in agreement...

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Who Pays For My Debts When I Pass Away?

While that seems like a simple question, the answer can be complex.  The answer depends upon how you have planned and your estate plan, will, trust, account beneficiary designations, etc.  There is simply  no one answer that answers this question for everyone.  It will also depend upon the type of debt, if there were co-signers for your debt and the type of assets and estate that you have upon your passing will determine who gets paid.  

Most debts will not attach to your primary residence other than mortgages, taxes, homeowners associations and builder liens.  However, the equity in the property may need to be used to pay your unsecured bills.  Generally speaking, your estate will be responsible for your debts up to the amount of the value of the estate.  This means if your bills are $1,000 and your assets are $600, your estate is only responsible for $600.  The remaining $400 will be written off.  Your heirs are not responsible for...

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What Is A Probate Admistration?

A probate administration is the court process to transfer the assets of a decedent to his or her heirs or beneficiaries.  The court oversees the transfer through a court supervised proceeding.  Before the assets are transferred, a court order authorizing the transfer is required.  

Whether or not a probate proceeding is required depends upon what documents, if any, your loved one had and the value of the estate.  If the estate plan only consisted of a will, a probate will need to be opened.  If no estate plan was done, a probate will need to be opened.  If there was a trust and a will, a probate is generally not required.

A simple test to determine whether you need a probate is do you need the decedent’s signature to transfer the assets.  For example, your mother had a home when she passed away and the home was held in her name individually.  In order to transfer the home, you need your mother’s signature.  A probate will be...

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