Does Community Property 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. Does it need to go through Probate?”. 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 the right of survivorship.

And if the deed says with the 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 the 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 full formal probate if you find out there is a 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 full formal probate.

If you are ready to start your case, then please give us a call or fill out our Get Help Now form. A comprehensive overview of California Probate is available here. Should you have additional questions about trust litigation, you will find plenty of useful information in our Learning Center.