Being Married Does Not Guarantee You’ll Inherit the House without Probate?
It’s time to talk about something that happens all too often and can be avoided altogether with more knowledge and legal planning. We’ve had to help so many widows and widowers probate their family homes because they incorrectly believed they would inherit their home automatically even without an estate plan. The truth is that inheriting real property will involve some level of paperwork. How expensive, lengthy, or complicated a process depends on many things.
Today, I will discuss one common scenario: spouses own a home (we’ll assume it’s community property), but the home is only in one spouse’s name when the spouse that held the title passed away. The spouses did not create an estate plan (e.g., Will, Trust).
What does the widow/er (e.g., surviving spouse) need to do? The absolute wrong thing to do is nothing. And sadly, some do just that, sometimes because they don’t know or don’t want to spend the money. So, they continue paying the mortgage and living in the home as if nothing happened. Doing this may seem okay for a while, but once the surviving spouse wants to refinance or sell the home, they realize they must do something about the title. Why? Because you can’t do the above if you don’t have the legal title of the home. Inheritance laws may make you the default owner because of community property laws in California. Still, you are not the owner until your name is on the title.
In this situation, the right thing to do is hire a lawyer who can help you get the title of your property as soon as possible. We do this by filing a special probate petition with the court called a spousal property petition. It’s a simplified probate court procedure that is much shorter, and the fees are significantly lower than for a full probate (NOTE: this blog doesn’t address an estate that needs a full probate administration or other scenarios.)
This process is more straightforward because it only seeks to determine what property passes to the surviving spouse and confirms that property to the surviving spouse. Generally, all community property goes entirely to the surviving spouse in California. (Probate Code §6401(a) and (b).) However, separate property may go to the surviving spouse only if there are no children, parents, or siblings of the decedent. If the property is determined to be separate property and not community property, the surviving spouse may have to share in the inheritance with children, parents, or siblings of the decedent. (Probate Code §6401(c).).
So, in the scenario above, since the home is only in the decedent’s name, on paper, the surviving spouse does not inherit the entire property if their deceased spouse leaves behind children, parents, or siblings. Therefore, the court will have to determine based on the evidence presented and after giving legal notice to any potential heirs (e.g., children, parents, or siblings) that the property is community property and should be inherited by the surviving spouse. Once a court order confirms this, the surviving spouse can change the title to their name.
If this scenario applies to you, contact us. In our consultation, we’ll ask you questions to help us determine a couple of important things:
● Whether there are any estate planning documents
● Whether you’re the sole beneficiary or there are multiple beneficiaries
In the event the surviving spouse cannot file the petition themselves, the probate court also allows the following people to file a spousal property petition:
● The representative of a surviving spouse’s estate (if the surviving spouse is also now deceased)
● The conservator of the surviving spouse’s estate.
If you have questions about spousal property petitions or how to avoid this situation by creating an estate plan, give us a call. We’re happy to help!
Meza Talbott Law
A Family + Estates Firm
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