A simplified probate procedure may be possible with a spousal property petition. Such a petition can be used to transfer assets from the deceased spouse to the surviving spouse or domestic partner without the time and cost of a formal probate.
The spousal property petition can be used if the decedent had a will and the only beneficiary was the surviving spouse or domestic partner. If other beneficiaries are named in the will, however, this procedure cannot be used and a formal probate will be necessary to transfer the assets to all the beneficiaries. If the decedent died without a will, leaving only a surviving spouse or domestic partner, the procedure can also be used. The property is distributed in accordance with the laws of intestate succession. Community property will be transferred to the surviving spouse or domestic partner through the spousal petition. Separate property, if there is any, will have to be distributed through formal probate. If there is property in joint tenancy, that will be distributed to the joint tenant without any probate.
The surviving spouse or domestic partner files a petition with the Probate Court setting forth the facts as to why he or she is entitled to the community property, listing the property to be distributed, the decedent’s date of death, date of marriage, etc. A court hearing is set in the probate court after notice is given to everyone mentioned in the will and the heirs of the decedent. If the court grants the petition, the order is then recorded with the County Recorder in each county where there is real property. Copies of the order may be used to show financial institutions and investment companies to complete the transfer.
The spousal property petition is a good way to distribute community property to the surviving spouse when the only assets to be distributed are community property. One big advantage is that the cost of such a petition is much less than a formal probate. There are some reasons however, why the spouse may not want to take advantage of the spousal property petition. One reason might be that there are creditors who will be making claims, or it is likely that there will be a will contest, or litigation. Also if the decedent created a trust, there is no reason to use the spousal property petition or probate at all. Trust administration is usually done without the assistance of the probate court.
The estate planning lawyers at Scott C. Soady, A Professional Corporation can assist with determining if a spousal property petition would be available for you. If you have lost a spouse and need information about trust administration or probate, contact us for a complimentary consultation.