Does Community Property Have to Go Through Probate?
Often this question comes up when someone loses a parent and they contact us saying, “My mom or my dad died but the deed to their house says that they own the home as community property”. Well, we have to actually look at the deed to see what it is that is going to happen; and that’s because in California, we are one of the community property states in the U.S.
You can take title as community property with or without right of survivorship.
And if the deed says with right of survivorship, then the surviving spouse gets the entire house. It works the same way as a joint tenancy deed does. When one person dies, the other person who is on the deed owns the entire thing. But, we are dealing with human beings, sometimes mistakes are made.
So sometimes we will find out that title was taken in community property.
The deed says, “community property” and leaves out the words “without right of survivorship”. That’s important because community property is just a way of describing the ownership interest; It doesn’t convey anything. So if the deed says only community property, you could be looking at probate. Now, there is a solution for any couple who is in this position. You don’t have to do a full formal probate if you find out there is community property interest.
What a surviving spouse can file in the probate court, is something called a spousal property petition.
And what that means is (unique to California), that the surviving spouse gets to come in and say, “The entire asset was owned as community property. And for that reason, all of it passes to me.”
California makes an exception in our probate code that says if the spouse does this, it does not have to go through full formal probate. It still means a trip to the probate court, but it is much faster and much less expensive than having to do a full formal probate.
If you need to do a probate or have questions about completing a probate, do not hesitate to contact our office today or via phone at 888-443-6590.
AttorneyThe Grossman Law Firm, APC · 525 B Street, Suite 1500, San Diego, CA 92101 · (951) 523-8307