Spousal Property Petition

California Probate Code (CPC) 13500 provides for a simplified procedure to distribute property from a decedent to the surviving spouse. The requirements for a Spousal Property Petition are as follows:

A-The Petition can only be filed by a surviving spouse or a representative/conservator of the surviving spouse. Additionally, a surviving domestic partner can file for the petition.

B-Which assets can be transferred using the Spousal Property Petition depends on the whether or not a Will exists and if so, the contents of the Will:

i-If a Will exists, and the only beneficiary is the surviving spouse, then all property listed in the Will can be passed to the surviving spouse using a Spousal Property Petition.

ii-If the Will lists other beneficiaries, then only the property listed as passing to the surviving spouse can use the Spousal Property Petition. The other assets passing to other beneficiaries will likely need to go through a full probate to be properly transferred.

iii-If no Will exists, then only the property that would pass to the surviving spouse, through intestate succession, can be passed to the surviving spouse using the Spousal Property Petition. This is usually limited to the Community Property of the estate. Separate Property usually cannot pass to the surviving spouse without a full probate procedure. It is important to determine the nature of the assets in the estate (Community versus Separate Property) to see if a Spousal Property Petition is applicable. It is advisable to contact an attorney if you are unsure of the nature of a specific asset.

 

Multiple forms are necessary to file a Spousal Property Petition, here are the following forms and steps you will need to take:

1-DE-221, Spousal Property Petition. This form will need to be completed and signed by the surviving spouse or his/her representative. This petition will also explain why the property belongs or should legally pass to the surviving spouse. Remember to file an additional copy along with the original.

2-Attach a copy of the decedent’s Will to the Petition, if one exists. The court might also ask for a copy of the decedent’s Death Certificate. It is good to have that document handy in case it is needed.

3-If no Will exists, you will need to prove that the assets you are requesting to transfer were Community Property in nature. This can be evinced by a written agreement between the parties, a grant deed showing title to real property, for example the residence was titled as “John and Jane Martin, as Husband and Wife as Community Property”. A grant deed recorded with the county recorder can often have a transmutation in it, stating “this property is community property between John and Jane Martin”, which can also be used.

4-DE-226, Spousal Property Order. This form is very similar to the Petition and should be easy to fill out. Wait until you receive the hearing date information to file this Order with the court (explained below).

5-DE-120, Notice of Hearing. This form is used to prove that notice was given to the interested parties listed on form DE-221. This is a multi-step procedure that consists of the following:

i-File the completed form DE-221 (Petition), and form DE-120 (Notice of Hearing), along with a copy of each, with the Superior Court where decedent resided. When preparing the Notice of Hearing, only fill out the first page of the form, the second page will be filled out later. Additionally, leave the “Hearing Information” box unfilled as the Court Clerk has not given you that information yet. Once filed, the Court Clerk will assign a hearing date for your petition, along with the Judge, Court Room, Department, and time of hearing. The clerk will then give you copies of the Petition and Notice of Hearing, each of which should have the hearing date information either stamped or filled out on them. Please note that this is the procedure in most counties in California, but some counties vary. Contact your local probate court for more information.

ii-Insert the hearing date information into form DE-120 (Notice of Hearing) if it has not already been done by the Court Clerk. Now you can complete the second page of the Notice of Hearing, including names and addresses of all interested/served parties. Then have a non-interested party, who is over the age of 18, sign and serve the notice to interested parties. Attorney’s usually use a paralegal or secretary.

iii-Mail a copy of the DE-120 Notice along with a copy of the Petition (DE-221) to all interested parties. Make sure the copy of the Petition (DE-221) and the Notice of Hearing (DE-120) both contain the hearing date information. All parties must be served with Notice at least 15 days before the hearing date.

iv-Re-File form DE-120 (Notice of Hearing) with the court after all interested parties have been sent their notification and petition. Remember that you are now re-filing the “completed” DE-120 form. The first time it was filed, only page one was completed. A bit strange, but this is the process many counties throughout California follow. Contact your local county to find out their exact procedure.

v-As you now have the hearing date information, you can now insert that information into form DE-226 (the Order). Once completed, file the Order along with a copy with the court. Make sure to file this at least 4 days prior to the hearing date. Do it way in advance if you can – If you make the court clerk’s life easier, they are sure to make your life easier as well.

If the Petition is approved, the Judge will sign the Order and give it back to you. You must then take the signed Order and file it with the court clerk.

Request that the court clerk give you a certified copy of the Order. This order must then be filed (recorded) with the County Recorder where the decedent’s real property was located. This puts the public on notice of the transfer of property from the decedent to the surviving spouse. Copies of the order can also be used to clarify title with financial institutions such as banks and other private firms.

Note – Because this is not a full probate proceeding, those receiving property through a Spousal Property Petition will be responsible for the decedent’s debts, up to the fair market value of the property as calculated at the date of death. Thus it is advisable to speak with an attorney before filing for a Spousal Property Petition.