Do I need to probate my deceased spouse's property?
Under California Probate Code Sections 13500-13053, if some or all of a deceased spouse's estate goes to the surviving spouse, that property may be transferred without probate administration. However, some title companies, banks, or other financial institutions may still require a formal court document allowing the transfer.
Spousal or Domestic Partner Property Petition
A surviving spouse or registered domestic partner may file a petition known as the Spousal or Domestic Partner Property Petition with the Court to confirm that some or all of a deceased spouse's estate passes to his or her surviving spouse or domestic partner. The relevant law can be found in California Probate Code Section 13650, which provides:
(a) A surviving spouse or the personal representative, guardian of the estate, or conservator of the estate of the surviving spouse may file a petition in the superior court of the county in which the estate of the deceased spouse may be administered requesting an order that administration of all or part of the estate is not necessary for the reason that all or part of the estate is property passing to the surviving spouse. The petition may also request an order confirming the ownership of the surviving spouse of property belonging to the surviving spouse under Section 100 or 101.
(b) To the extent of the election, this section does not apply to property that the petitioner has elected, as provided in Section 13502, to have administered under this code.
(c) A guardian or conservator may file a petition under this section without authorization or approval of the court in which the guardianship or conservatorship proceeding is pending.
If the probate of the deceased spouse's estate is underway, this petition will be filed under the same case number as the main probate and notice must be given to the relevant parties as outlined in California Probate Code Section 13655.
If the Court approves the petition, a Spousal or Domestic Partner Property Order should be prepared and signed by the judge.
The use of the Spousal or Domestic Partner Property Petition can greatly simplify the administration of the deceased spouse's estate and should be an avenue that's considered when working with a prospective client whose spouse or domestic partner passed away.