Community property refers to all property owned by a married couple during their marriage, with each spouse owning the property equally. Each spouse has a right to pass on his/her share to whomever he/she wishes in a last will and testament. If no disposition is indicated in the will, the interest will pass to the surviving spouse. This differs from property owned as a joint tenancy because when a joint tenant passes away, their share of the property can only pass to the surviving joint tenant.
Since California is a community property state, a spouse is typically entitled to some of the community property when the other spouse dies without a will dependent on whether there are children and if they are the children of the surviving spouse. Property held in this manner must go through the probate process in the event of death of either spouse because there is no right of survivorship clause. Like joint tenancy, if the deceased spouse’s interest passes outright to the surviving spouse, no probate administration is required (although, an inexpensive court confirmation procedure may be required). If the property is located in California, a property owner could use the Right of Survivorship version of this vesting in order to avoid probate (as discussed in Part 3),
Example: Stacy and Jack are married and have recently purchased a new home. The home is owned as community property. They can each will their interest to whoever they want to. In the event that one person wants to sell his/her interest, both owners must sign the transfer documents. In the event one passes away, their interest may be transferred to the surviving spouse and/or children, depending on what the will provides.
BEWARE: What if both Stacy and Jack die in a car accident or Jack passes away within a few weeks after Stacy dies? The property will need to be probated if they did not hold title as trustees under their trust.
SOLUTION: Transfer your vesting into a TRUST to avoid probate! Call us today to find out how we can help!
Do you know if your home is protected from probate? There are many ways to hold title to your home but will it go to probate when you pass away? In a six part series, I provide an overview of the most common vestings (how you hold title) and whether or not your property will avoid probate. Read More on other ways to hold title…
Continue to Part 1 – SOLE OWNERSHIP
Continue to Part 2 – JOINT TENANCY
Continue to Part 3 – COMMUNITY PROPERTY WITH RIGHT OF SURVIVORSHIP
Continue to Part 4 – COMMUNITY PROPERTY
Continue to Part 5 – TENANTS IN COMMON
Continue to Part 6 – LIVING TRUST
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Probate is a special court that supervises and determines how a deceased person’s estate is to be distributed. The probate procedure may take years to complete. Probate can become an expensive and time consuming process that can be avoided by creating a Living Trust or adding a Joint Tenant. Ultimately, however, the best solution to avoid probate is to vest your real property in your Living Trust.