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In California, there are several laws which allow for a surviving spouse to collect and transfer the assets of the deceased spouse without a formal probate of the deceased spouse’s estate or other court proceeding.  Generally speaking, the reason California has such rules is because California is a community property state.

Without going into the various aspects of California as a community property state and how it and the various rules impact transfer of marital assets to the surviving spouse, there are times when a formal probate or court procedure is a good idea even if not necessary.  Transfer of title to a marital asset such as real property or other personal property (with a title) to the surviving spouse by court order can avoid issues later on with a sale or transfer of the asset to another person. 

Whether or not the estate is subject to formal probate, it is a good idea to determine which property can be transferred without the formality of probate. It may even be that only part of the deceased spouse’s property requires probate.  So what alternative procedure would be a good idea in these situations?

California law recognizes what is commonly known as a Spousal Property Petition.  Such a petition may be used to confirm that the surviving spouse’s marital property belongs to them, alone.  It may also be used during a formal probate of an estate to determine, by court order, that certain property of the deceased spouse is not subject to a formal probate.  This will save the surviving spouse quite a bit of headache.  But more than that, as authorized by California law, the petition can also be used for distributing an uncomplicated estate to a surviving spouse when the time consuming, complex, and expensive nature of a formal probate is really not needed. 

When the Spousal Property Petition is used, the surviving spouse (or other individuals as authorized by California law) may file a petition in the superior court in the county in which the deceased spouse’s estate may be administered.  There are filing fees and other court costs for such a petition; however, the overall process is usually simplified from a full probate.   If there is a pending probate of the estate and the petition is utilized to clarifying which property is subject to probate, the petition must be filed in that probate proceeding.

Despite the fact that a Spousal Property Petition is a way to transfer marital assets to the surviving spouse without a formal probate, the process and proceeding can still be quite challenging.  Additionally, determining when such a petition is needed versus when it is not needed (because of various other applicable California laws) is complex and very case specific.  Given all of this, anyone facing the above facts or considering a Spousal Property Petition should contact the Chilina Law Firm or another California attorney focusing on estate planning or probate for more information and for a review of their case.

Authored by Karen Chilina and co-authored by Greg Chilina

Chilina Law Firm, a Professional Corporation, is a full-service estate planning, probate, trust administration, business law, and real property law firm that provides a wide-range of advising, transactional, and litigation services to its clients from its office located in Atascadero, California. The firm’s attorneys represent individuals and business entities in an assortment of transactional and litigation matters involving estate planning (including trusts, wills, powers of attorney, and medical directives), probate, trust administration, as well as general business law, contracts, corporate governance, land use, and real property. Chilina Law can be contacted by telephone at (805) 538-5038 or by email atinfo@chilinalaw.comor visit the Chilina Law Firm atwww.chilinalaw.com. Chilina Law Firm is based in Atascadero, California and serves North San Luis Obispo County communities, including Santa Margarita, Atascadero, Templeton, Paso Robles, and San Miguel.

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