Under California Probate Code Sections 13500-13053, if some or all of a deceased spouse's estate goes to the surviving spouse, that property may be transferred without probate administration. However, some title companies, banks, or other financial institutions may still require a formal court document allowing the transfer. 

Spousal or Domestic Partner Property Petition

A surviving spouse or registered domestic partner may file a petition known as the Spousal or Domestic Partner Property Petition with the Court to confirm that some or all of a deceased spouse's estate passes to his or her surviving spouse or domestic partner. The relevant law can be found in California Probate Code Section 13650, which provides:

(a) A surviving spouse or the personal representative, guardian of the estate, or conservator of the estate of the surviving spouse may file a petition in the superior court of the county in which the estate of the deceased spouse may be administered requesting an order that administration of all or part of the estate is not necessary for the reason that all or part of the estate is property passing to the surviving spouse. The petition may also request an order confirming the ownership of the surviving spouse of property belonging to the surviving spouse under Section 100 or 101.

(b) To the extent of the election, this section does not apply to property that the petitioner has elected, as provided in Section 13502, to have administered under this code.

(c) A guardian or conservator may file a petition under this section without authorization or approval of the court in which the guardianship or conservatorship proceeding is pending.

If the probate of the deceased spouse's estate is underway, this petition will be filed under the same case number as the main probate and notice must be given to the relevant parties as outlined in California Probate Code Section 13655.

If the Court approves the petition, a Spousal or Domestic Partner Property Order should be prepared and signed by the judge.

The use of the Spousal or Domestic Partner Property Petition can greatly simplify the administration of the deceased spouse's estate and should be an avenue that's considered when working with a prospective client whose spouse or domestic partner passed away.

Occasionally there's a need to analyze the types of gifts that a deceased person describes in his or her Will to figure out which ones should be given priority. This problem usually arises when the estate does not have enough assets to fulfill all of the gifts described in the deceased person's Will. California Probate Code Section 2117 identifies six types of gifts, and it provides as follows:

At-death transfers are classified as follows:

(a) A specific gift is a transfer of specifically identifiable property.

[For example, "I give my car to Sammy."]

(b) A general gift is a transfer from the general assets of the transferor that does not give specific property.

[This one is a bit confusing, but it would be something like, "I give a gift of a new Rolex watch to Linda." This would require the executor to purchase such a watch and give it to Linda. On the other hand, if the Will said, "I give my gold Rolex watch to Linda," this would be considered a specific gift.]

(c) A demonstrative gift is a general gift that specifies the fund or property from which the transfer is primarily to be made.

[For example, "I give $10,000 to Bob from my Wells Fargo Money Market Savings account."]

(d) A general pecuniary gift is a pecuniary gift within the meaning of Section 21118.

[Probate Code Section 21118(b) describes a "pecuniary gift" as a "transfer of property made in an instrument that either is expressly stated as a fixed dollar amount or is a dollar amount determinable by the provisions of the instrument." An example would be, "I give $3,000 to Steve."]

(e) An annuity is a general pecuniary gift that is payable periodically.

[For example, "I give $1,000 per month to Mark for the next 60 months."]

(f) A residuary gift is a transfer of property that remains after all specific and general gifts have been satisfied.

[For example, "I give the residue of my estate to my son, Carl."]

The distinction between residuary, general, and specific gifts is important when a deceased person's estate is inadequate to fulfill all of the contemplated transfers. In general, specific gifts are given the highest priority, general gifts are given the next level of priority, and residuary gifts are given the lowest level of priority. 

The Small Estate Set-Aside was previously discussed in the context of family protection statues, but it is worth mentioning again for purposes of probate avoidance.

California Probate Code Sections 6600-6615 permit a summary set-aside of a deceased person's estate if all of his or her personal property and California real estate has a net value of $20,000 or less. The key here is that we look to the net value of the property rather than the gross value. This means that we reduce the value of the property by any debt, mortgages, liens, and other encumbrances (as well as the value of the probate homestead, if any).

This procedure, however, is only available to the surviving spouse and to the deceased person's minor children.

Although somewhat limited in scope and only allowed to be used by certain family members, it can be an incredibly useful tool when the appropriate context arises. More often than not, the surviving spouse and minor children are the ones who are faced with the need to probate the deceased person's estate any way. In addition, with the rising level of household debt, it's not uncommon for a deceased person's estate to have relatively little equity (especially if he or she is young).

Transferring real property without going through a full probate process in California is frequently impossible. This is often because much of the real estate in populated areas of California has a high market value. That being said, there are a couple of methods to transfer real property when the dollar thresholds under California law are met.

Petition to Determine Succession to Real Property

The first method involves a special petition to the court requesting that the court issue an order determining who the new owner of the property is. The Judicial Council of California has created a special form for this purpose. Use of this form involves a couple of requirements:

1. There is no probate proceeding in California of the deceased person's estate, or the personal representative may consent to using this method; and
2. The gross estate is valued at no more than $150,000.

The value of the gross estate is determined by preparing a special form called an "Inventory and Appraisal", which lists the assets that would've been subject to probate. This form is then sent to special court-appointed "probate referees" (appraisers) who then provide the market values of those assets as of the date of death. The relevant law is found in California Probate Code Sections 13150-13158.

Affidavit re Real Property of Small Value

The second method involves an affidavit that is filed with superior court and requires that the value of all of the deceased person's California real estate not exceed $50,000. Again, the value of the real estate is determined by a probate referee on an Inventory and Appraisal. This procedure can only be used after 6 months have passed since the date of death. Once the affidavit is filed with the superior court, a certified copy is then recorded in the county where the real estate is located. The relevant law is found in California Probate Code Sections 13200-13210.

As you can imagine, one major hurdle is that real property of any consequence in California is rarely less than $150,000 or $50,000, which is why it is especially important for owners of real estate in California to engage an estate planning lawyer.