Though there are some steps California residents can take during their lifetime to avoid probate, many neglect to do so. However, all is not lost-it might be possible for a surviving spouse or domestic partner to file a spousal property petition.
Property that is not in a trust, does not have a surviving joint tenant or does not have a pay-on-death beneficiary will go through probate. Probate, as mentioned previously on this blog, is a process that drains heirs' emotions and finances. Many may not know that creating a will does not mean an estate avoids probate. However, if there is a will with the only beneficiary being the spouse or domestic partner, he or she can get the property transferred through the spousal property petition. This way, probate may be avoided.
Where the will has other beneficiaries, then only the property that is going to the spouse will avoid probate through the petition in question. Assets going to other beneficiaries will most likely have to go through the whole procedure to be transferred properly. However, where there is no will, then only property that would have gone to the spouse through intestate succession would pass through petition to the him or her. Probate may not be avoided in this instance.
There are a number of forms that have to be filed to claim spousal property and they vary depending on the decedent's situation. While it may be helpful to discuss methods to avoid probate with an attorney as soon as possible, it might also help to speak to someone after a spouse passes away. This ensures you are well informed of your situation, rights and options.