LA Probate Law: How does the Spousal Property Petitions process work?
A Spousal Petition should always be the first petition your attorneys considers when dealing with a surviving spouse or domestic partner. It may not work in every case and may not be the best answer but we always consider it first as it is typically the most economical way to transfer property to the surviving spouse. If your attorney does not mention this option to you, and you are a surviving spouse, you might ask them why explains LA Probate Law. The surviving spouse files a spousal property petition with the Superior Court in the county in which the decedent resided. The petition is usually filed with the help of an attorney, although that is not required. The petition states the facts of the case (name of the decedent, date of death, etc.) and also lists the community property owned the decedent. Some of the decedent’s assets will not be on the petition, however, because they were owned in a joint tenancy. What is a spousal property petition? After the death of a spouse, a spousal property petition can be used to transfer assets from the deceased spouse to the surviving spouse or domestic partner. It is a simplified probate, and takes much less time than a full probate. Legal fees are usually much lower for a spousal property petition than a full probate.
When can a spousal property petition be used?
Whenever someone has died and that person leaves a surviving spouse or domestic partner. If there is a will, and the only beneficiary is the surviving spouse or domestic partner, both community property and separate property can be transferred by a spousal property petition. If the will has other beneficiaries, however, a probate may be needed for the assets being transferred to those beneficiaries. However, if there is no will, the estate will be transferred in accordance with intestate succession. Community property can be transferred to the surviving spouse or domestic partner through the spousal property petition. But if the decedent owned separate property, and there is no will that gives the separate property to the spouse, a full probate might be required for the separate property assets. What happens if the surviving spouse does not file a spousal property petition? Title to assets owned by the couple will be clouded because a deceased person will be listed as an owner of the assets tells LA Probate Law. Real estate, for example, cannot be sold or refinanced until the title is cleared. Decades of law involving estate disputes and divorce have made the declaration and identification of community property a complex legal procedure.
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: That property transfer from the deceased spouse to the surviving spouse; and/or 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. 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 cannot be used when the decedent left a pour over will to a trust explains LA Probate Law. Remember property does not have to be community property to fall within a spousal property petition. Any property, community or separate, transferring from the deceased spouse to the surviving spouse qualifies.
Does a spousal property petition have to be used in all cases in which there is community property?
No. In some cases the surviving spouse may want to probate the estate because litigation against the estate or a will contest is likely, or because of potential problems with creditors. The petition asks that the court state that the decedent’s half of the community property passed to the surviving spouse by operation of law and that the court confirms that the surviving spouse’s half of the community property belongs to the surviving spouse. A court hearing is set for the petition, and notice of the hearing is sent to everyone who is mentioned in the will (if there is one) and all of the heirs of the decedent. If there is no objection to the spousal property petition, the court will sign an order that transfers all of the community property to the surviving spouse’s sole ownership says LA Probate Law. There is usually no testimony required and spousal property petitions are often on the court’s “pre-approved” list, meaning that unless someone asks that the case be heard, there will be no hearing and the court will sign the order. The spousal property order is then recorded with the County Recorder in each county in which the real property is located to put the surviving spouse’s ownership of the property on the public record. Copies of the order are also given to financial institutions and brokerages to clear up any ownership questions concerning other assets.