Fremont, CA asked in Probate for California

Q: Do I need to use probate in my situation ? in California.

My situation: Wife of 9.5 years passed away due to cancer. We bought property during our marriage, but chose to put the title only under her name, because of credit concern at the time of purchase. We were foolish to think one of us would die so early and did NOT make an official will. I have continued to pay for the mortgage for past several years, while raising our small daughter there, but feel it's time to take care of this asset matter. Can I use community property clause to transfer the property to my name? Or must I go through the probate process? Thank you in advance for any advice.

ps. no will, no pre-nups, no joint bank account, all post death payments via my savings.

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3 Lawyer Answers
John B. Palley
John B. Palley
Answered
  • Probate Lawyer
  • Roseville, CA
  • Licensed in California

A: As I understand the facts probate court is required. However, a spousal property petition should work. I would need the specific details to know for sure. For example, was down-payment and all mortgage payments from "community property" sources, did she have a will, was there a pre-nup, etc.... Feel free to call or drop me an email with the specifics and I'll see if I can guide you. I do probate court work throughout California. -John

Genene N. Dunn
Genene N. Dunn
PREMIUM
Answered
  • Probate Lawyer
  • Tustin, CA
  • Licensed in California

A: If title is only under her name but the property was bought during marriage using community property funds then you would most likely be able to file a spousal property petition to get the property transferred. It does not require the full probate procedure, but still some court interaction.

Bill Sweeney
Bill Sweeney
PREMIUM
Answered
  • Probate Lawyer
  • San Juan Capistrano, CA
  • Licensed in California

A: In California, community property is generally property acquired by either spouse during the marriage. This includes income received from work, property bought during the marriage with income from employment, and separate property that a spouse gives to the community. With community property each spouse owns a one-half interest and spouses have the right to dispose of their share of the community property in whatever way desired. Based on your facts it would appear that your home is a community asset. You should contact a competent attorney for advice and a plan of action, such as a spousal petition.

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