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Options for the Surviving Spouse

Spousal property petitions are tools that are used by surviving spouses or surviving domestic partners to transfer the title of the decedent’s assets from the decedent to the spouse or partner. It is cheaper and less complex than probate, which is why many people will find it advantageous.  If the decedent died with a will and the surviving spouse or partner is the only named beneficiary, then the spousal property petition can be used to transfer both community and separate property. If the decedent’s will names other beneficiaries besides the surviving spouse or partner, probate may be required before the distribution of the estate’s assets can continue.

If the decedent died intestate, the estate will pass according to the rules of intestate succession.  In this case, the spousal property petition can only transfer title of the community property. When a decedent dies intestate and has separate property, full probate may be required to determine who will take possession of the separate property.

The process of filing the surviving spouse petition goes as follows: The spousal property petition is filed with the Superior Court in the county where the decedent lived. Although it is advisable that an attorney assists in the preparation of the petition, it is not required. The petition must contain the facts of the case and all of the community property that the decedent owned at the time of death, except those assets that were owned in joint tenancy. The spousal property petition makes the following requests of the court: (1) that the decedent’s share of the community property be passed on to the surviving spouse or partner by law; and (2) that the surviving spouse or partner’s share of the community property also belongs to the surviving spouse or partner. Notice of a hearing is then sent to all interested parties and the court waits to hear if there will be any objections to the petition. If there are no objections, the court will usually grant the petition and the title of the community property assets will be transferred to the surviving spouse.

While it is possible to file a spousal property petition without the assistance of an attorney, it is certainly not advisable. If you are a surviving spouse and you are considering how to proceed with the settling of your deceased spouse’s estate, please consult with an estate planning and probate lawyer who is experienced in these areas. Estate-planning attorney John Palley at Meissner, Joseph & Palley, Inc. is a Certified Specialist in Estate Planning, Trust, and Probate Law. His office will be happy to assist you with any of your estate planning needs. Call today at 1-888-920-5983.

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