To Probate or Not to Probate, that is the Question.

California
law grants a surviving spouse special rights and obligations concerning the
probate estate and personal debts of a deceased spouse.  These are governed by community property
laws.  The same rules apply to California
registered domestic partners. 

Community
and Quasi Community property is divided equally at death, and separate property
belongs to the owning spouse.  Assets
acquired while married and living together are either Community or Quasi
Community property.  Any property
acquired before marriage, or by gift or inheritance while married, is the
separate property of that spouse.

            Accordingly, a surviving spouse owns one-half of all the
couple’s community property and quasi community property.  The decedent may thus bequeath his or her
one-half of the community property, and all his or her separate property, as he
or she pleases.  If the deceased spouse
attempts to give all of a community property asset to someone other than the
surviving spouse, the surviving spouse must elect between inheriting under the deceased spouse’s will or trust and receive
those gifts, or else enforce her community property rights. 

            When a deceased spouse dies intestate (i.e., without a
will) owning an interest in community property assets not held in joint tenancy
or trust, the surviving spouse owns the entire community property estate.  After forty (40) days, the surviving spouse
has complete control, unless, in the case of real property, someone has filed a
notice claiming an inheritance under the deceased spouse’s will.

            Probate is never required to transfer property from the
deceased to the surviving spouse.  The
surviving spouse can use either the affidavit procedure for small estates or
file a spousal property petition.  Small
estates are those appraised at under $150,000.
Affidavits may not be used for real property appraised over $50,000,
even in small estates.

            Sometimes, however, a surviving spouse will probate the
entire community property and the decedent’s separate property.  This is because, generally, the surviving
spouse is personally liable for all the debts of the deceased spouse, up the
value of any community and separate property received without probate.  Through probate the surviving spouse can
avoid personal liability and have the debts allocated.  If any such assets are held in a trust, the
trustee can transfer them to the executor.
Community property in joint tenancy would presumably need to be
transferred too.

            In a probate, the surviving spouse can petition to have
debts allocated between the spouses.
They are typically allocated as if a divorce had occurred at date of
death.  Generally, the community property
answers for all the debts incurred during marriage.  There are exceptions.  The deceased spouse’s funeral expenses and
expenses of last illness are allocated to the decedent’s estate only, and not
to the surviving spouse’s one-half interest in the community property or
separate property.  Debts from before
marriage are allocable to the debtor spouse’s separate property, and, any
excess is allocated to the debtor spouse’s one-half interest in the community
property estate.

            Upon petition in a probate the surviving spouse may
receive a family maintenance allowance as necessary to maintain the surviving
spouse and dependent children in their accustomed manner of living.   Upon petition, the court, at its discretion,
may also grant a family homestead.  A
family homestead allows the surviving spouse, and any minor children, to live
in a residence for a period of time as the court finds proper; sometimes the
surviving spouse’s remaining lifetime. 

Interestingly,
the foregoing spousal protections apply even if the deceased spouse’s probate
estate is all separate property, and even if it is all bequeathed to someone
other than the surviving spouse.
Naturally in that case the court would unlikely grant the surviving
spouse a lifetime homestead as the court considers the competing interests of
the decedent’s heirs and beneficiaries and the decedent’s own testamentary
bequests.

How
the surviving spouse should best proceed is something to discuss with a
qualified Lake County probate attorney based on the facts and circumstances.