If you recently lost your spouse, you probably do not want to think about the practical and legal steps that are required following a death. To ensure that your spouse’s estate is properly handled, and assets are transferred to the intended beneficiaries and/or heirs of the estate, however, you need to consider the need to probate his/her estate. Let’s see when you will need to probate a spouse’s estate in California.
Why Might I Want to Avoid Probate?
Probate is the name given to the legal process that typically occurs after a person’s death. Probate provides judicial oversight, ensuring that the assets owned by the decedent at the time of death are properly identified, located, and eventually transferred to the beneficiaries and/or heirs of the estate. One reason people attempt to avoid probate when possible is the time it takes to get through the process. In the State of California, creditors have four months from the date probate was opened within which to file claims against the estate. Consequently, you can expect it to take a minimum of six months to probate even a modest estate. The cost of probate is another incentive to avoid formal probate. Everyone involved in the process is entitled to a fee for their service, including the Executor, attorney, accountants, and appraiser. After adding in court costs and related expenses, probating an estate can be costly. Those costs are paid by the estate, often resulting in a significantly diminished estate value by the end of the process.
Is Probate Necessary If I Am the Surviving Spouse?
It is not unusual for a surviving spouse to look for a way to avoid formal probate, particularly if he/she expects to be the only beneficiary of the estate. Unfortunately, your role as the surviving spouse does not guarantee the ability to avoid probate in California. Before you evaluate the estate to determine if any of the small estate exceptions to formal probate apply, you should first evaluate the assets involved in the estate to determine which assets are probate assets and which assets are non-probate assets. Non-probate assets bypass probate altogether, meaning they pass to the named beneficiary without the need to go through any type of probate. Common example of non-probate assets that may transfer to you automatically include:
- Certain types of jointly held property
- Financial accounts or securities that are designated as “Payable on Death (POD)” or “Transfer on Death (TOD)” if you are the named beneficiary
- Assets held in a trust
- Proceeds of a life insurance policy if you are the named beneficiary
- Retirement or pension accounts if you are the named beneficiary
California does offer some alternatives to formal probate though that might apply in your case. For example, there is a simplified affidavit process that can be used to transfer personal property if:
- You have the legal right to inherit the property AND
- The probate estate value does not exceed around $150,000
The simplified affidavit process is not available if you wish to transfer title to real property, such as a home.
In addition, you may be able to use a simple form, called a Spousal or Domestic Partner Property Petition to get a court order that says:
- What your share of the community property is; and
- What part of your deceased spouse or partner’s share of community and separate property belongs to you.
Please download our FREE estate planning checklist. If you have additional questions or concerns about probating an estate, contact us at the Northern California Center for Estate Planning & Elder Law by calling (916)-437-3500 or by filling out our online contact form.
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