Below are my notes from my 2010 presentation on probate from start to finish. Again, this was an all day presentation for other attorneys about the probate process that was given by NBI (National Business Institute) a leader in continuing lawyer education. I was one of the features speakers for the day. This section below is about spousal property petitions. These are used to transfer assets to a surviving spouse. There is probate Court involvement but it is not a full probate. Let me know if you have any questions about your situation. -John
5. Spousal (domestic partner) Property Petition PC 13500 / 13650
PRACTICE POINTER: A Spousal Petition should always be the first petition you
consider when dealing with a surviving spouse or domestic partner. It may not work in
every case and may not be the best answer but you should always consider it as it is
typically the most economical way to transfer property to the surviving spouse. If you
file a full probate, without considering the use of an SPP, the Court could ask for an
allegation that the use of an SPP was offered to the client before filing the full probate.
Probate code 13500 talks about property passing to the surviving spouse without administration. It specifically provides for distribution to the surviving spouse by will or by intestate succession “and no administration is necessary.” It is true that administration is not necessary if the assets in question are personal in nature, jointly titled or in some other way allow the surviving spouse to automatically claim the asset. However, if the asset is only in the decedent’s name or is real property held in community property (that does not specifically say “with right of survivorship”) then a spousal property petition, pursuant to PC 13650, is likely going to be required.
The Judicial Council Form DE-221 is used for a spousal (or domestic partnership) petition. The contents of the petition are:
(1) Allege that the assets pass to the surviving spouse;
(2) Describe the property passing to the surviving spouse;
(3) Describe the property that is to be determined as already being community property;
(4) Facts supporting why the property should pass to the surviving spouse;
(5) Names, relation, address and age of people entitled to notice;
(6) Specify if there was, or not, a written agreement between the spouses regarding property (attach if so);
(7) A copy of the will;
The describing of facts to support why the property passes to the surviving spouse can be as simple as a valid will saying, “I give everything to my surviving spouse….” On the other hand it can get more complicated and involve the distinction of community property and separate property. This is particularly the case if there is no will and the laws of intestacy will apply. Information that might be included would be date of marriage, statement that no dissolution proceeding was started, statement that down payment money (or initial purchase money) used to buy an asset was from joint holdings (i.e. “community property”), statement regarding the source of mortgage payments, and any other information that would help establish the property as being community or separate property.
Notice is given to heirs of the decedent, named devissees in the will, all named executors in the will, personal representative if probate is proceeding and interested parties to trust if surviving spouse is trustee of a trust which is a devisee of the decedent’s will. (PC 13655)
The surviving spouse does have personal liability for assets received under this section. They are limited to the deceased’s debts up to the fair market value of property received (minus encumbrances).
With a spousal property petition there is no publication requirement, Letters do not issue, and no bond is required. A petition is prepared and filed with the probate Court. One of two orders are requested:
1) That property transfer from the deceased spouse to the surviving spouse; and/or
2) Confirmation that property is already the community property of the surviving spouse.
A spousal property petition is an election. That is, the surviving spouse can file a full probate if they desire. In some cases it is desirable to file the full probate rather than to utilize the spousal property petition but attorney fees should not be a factor! The reasons for opting for the full probate include dealing with creditors, selling property as a whole unit, ascertaining the proper recipients of assets, control, and administrator’s fees.
The Court may question the attorney who fails to utilize a spousal property petition so it’s important to discuss this option with a surviving spouse. Additionally, if the decedent’s estate is being distributed to both the surviving spouse and others the community property can be bifurcated from the rest of the probate and distributed directly to the surviving spouse without going through the whole probate process.
A spousal property petition can not be used when the decedent left a pour over will to a trust. However, pursuant to probate code 13503 there is a procedure where the surviving spouse or personal representative can elect to have community property transferred to the trust.
PRACTICE POINTER: Property does not have to be community property to fall within a spousal property petition. In property, community or separate, transferring from the deceased spouse to the surviving spouse qualifies.
Attorney fees are by agreement of the parties. There are no fees for the PR when using this code section.