KGCI: Real Estate on Air - Navigating Advanced Probate: Spousal Petitions, Asset Titling, and Expedited California Procedures

Episode Date: May 7, 2026

Summary:Attorney Robert J. Silverman joins host Bill to dissect complex California probate mechanisms. The episode provides tactical comparisons between standard probate and spousal property petitions, highlighting how married couples can confirm community property without full administration. Silverman details the legal and tax ramifications of different titling methods—such as joint tenancy versus community property with right of survivorship—and explains the criteria for the new $750,000 expedited probate threshold. The discussion concludes with a strategic look at "Special Administration" for urgent estate needs like foreclosures.

We're excited to have back again, Rob Soverman, Attorney, Robert J. Soverman, attorney in probate here in the state of California. And since we've met a couple times today, I decided we take a chance to maybe go into some advanced topics that real estate agents and petitioners, executors, administrators, vendors should know about. And we have a real life attorney, though he's not representing us or giving us legal advice. He can help us understand the process and explanation. So Rob, thank you for joining us again today. Thanks for having me again, Bill. Okay, so let's jump right into it. It's spousal petitions. You know, oftentimes I'll see a situation where there's an argument,

is it a spouse, it's not a spouse, we're worthy married, we're not a will, not a will. And people say, oh, no, it's easy. We don't need a probate. We just need to do a spousal petition. I would say, well, that isn't easy. It's different. It's a different document. Talk about a bit about the options of spouse petitions versus a standard probate. Sure. So if somebody was married and passed away and let's say they died in testate. They died without a will. And let's suppose, like a lot of married couples, all their assets were acquired during the marriage. They didn't, neither spouse brought anything into the marriage and kept it separate. Neither spouse inherited, or at least the deceased spouse, the first spouse to die, didn't inherit anything during

the marriage or receive anything by a gift. Those are all sort of. separate property. So everything was acquired during the marriage and everything is community property. Community property, dying without a will, community property goes to the spouse. And you'd say, well, fine, do a probate. And at the end of the probate, then all that, the community property, which is the 50% that was owned by the deceased spouse, will end up going to the surviving spouse. So 50%, there's a million dollars of assets and $500,000 of it belong to the deceased spouse. That has to go through probate, right? No, wrong.

A spousal property petition is what it's called, is filed or can be filed. And you basically petition the court. It's not, you don't follow the same rules as a probate, but you file a petition with the court. alleging that the deceased spouse owned these assets as community property, and they should be confirmed to belong, the 50% that belonged to the deceased spouse should be confirmed to belong to the surviving spouse. There's a hearing that's set, depending on the court, a lot of different courts in California, depending on the county. It's a couple months to six months. And whenever the hearing takes place, if everything is in order, the judge issues an order that says, yes, the 50% of the community property that was belonged to the C spouse is now owned by the surviving spouse done.

No publication, no notices, no creditor claim process, no inventory and appraisal, all the typical things that need to be done in program. don't have to be done. Simple. It's relatively simple notice petition and it's usually, it's not nothing, but it's a lot less expensive typically than a probate. If there are, if there's, even if there's significant separate property, well, so that's the basic bill. There is, and somebody might say, well, what if the, what if the deceased spouse owned a bunch of separate property too? Well, if the, then there probably has to be a probate because not everything can be confirmed to the surviving spouse unless there was a will. If there's a will that says all of my assets go to my spouse if I die first, then not only community property, but separate property can under the will be done by spousal property petition.

So assuming a serving spouse files an 850 petition. gets the court to confirm that all the assets are in fact community property does the court then issue an order and is that able to be used to to to grant property or sell property or transfer title or what what's the process look like to actually get the title of transfer to the name of the surviving spouse yeah good question so it's similar to a probate in that when you have real property and you have the final order and a probate that order gets recorded And that serves just like a deed.

The final order that says the spouse is entitled to this or that piece of real property in a probate petition, it's the same with a spousal property petition order. And that is similarly recorded. And then it is effectively like a deed in that the surviving spouse is then clear to refinance. So do anything that any other owner of real estate can do. Now, you mentioned it's less expensive than probate, but it's not free. Meaning if you have a million dollar property, a probate might cost $10, $20,000, $25,000 or more. You have legal fees and expenses and depending on a 50 petition.

It might be maybe my experience about half of that, but still a substantial amount of money. Does that sound about right as a general rule? It really depends a lot. I mean, attorneys have different rates throughout the state and some do these on a flat fee basis. Some do on an hourly basis. But, you know, I would say a reasonable range for a spousal property petition.

If everything else, there's no sort of weird facts and anything strange going on, is going to be anywhere from, call it, $3,500 to $7 or $8,000. Now, that's a big range, but there's a big range of experience and fee bases by attorneys. But in any event, yes, to your point, when you, it doesn't take, Based on the statutory fee formula, it doesn't take a real large estate to get up above, well above 10,000, 15,000, 20,000. And it would be unusual, even for very expensive attorneys to charge that for a spouse property petition. And typically these matters are heard in the same courts for probate are, like in LA County, it's in the probate court. So in essence, you're in probate court.

You're just not, the material is a spouse petition as opposed to a probate case or the petition. But really, at the end of the day, it's, you're paying maybe half the price, but something, and you're in the same building in front of the same judge, hiring an attorney kind of do the same thing. So oftentimes the customers, when they say, well, it's not a big deal, you know, well, it's not a big deal unless it's a big deal, right? Yes. Yes. If you think of it just as a simplified process that's less expensive, it takes a lot. Just even if the fees aren't hugely different, the procedure involves a lot less bureaucracy

and takes a lot shorter period of time typically. Shorter once you're there, but at least in LA County, when you file the 850 petition, your first turn day is not for six months. Right. On a probate theoretically, with full authority, you can get approved in 35, 40 days, get your order, and sell the property, and close escrow before then.

So again, it's different. I think this is where clients really need to sit down with attorney, and you're laying this out. But I think it's really important to get your clear plan. What are you trying to do? And so given that, it would be faster in some cases to do a probate than a spousal. Does one have the option to proletes?

as opposed to Sposite petition or is that not appropriate? Yes, absolutely you have the option. There are rare cases where even though it's going to be a little more expensive and it can take more time, it's appropriate and helpful to probate something. For example, there's a creditors claim period in probate, in a full probate where once, Once the petition is granted for probate and letters of administration or letters testamentary are issued, there's a four-month creditors claim period. If known creditors are notified and, you know, and they don't file a claim, and unknown creditors,

and unknown creditors, it doesn't matter if they're not known, they're not going to get a notice, and but with nevertheless they're required to file a creditor's claim within four months of letters being issued. If they don't do that, it's all over. So there's more finality. There is no such claim process with a with a spousal property petition. So if if you were concerned that the decedent had lots of creditors and it may be better to get closure and finality on the creditor side, you might file a full probate instead. One of the things that's interesting as a real estate agent, I'm literally doing with this today in a couple hours, when a buyer is buying a property and you're asking, well, how are you going

to hold title? They don't know. I'm not an attorney. I'm not allowed to give them legal advice, though I can send them a market material from an attorney or from a title company that lays out what their choices are and why they might want to make the right choice. And oftentimes, someone says, well, it doesn't make a difference. joint tenants or community property what's the real difference but there is a difference

talk a little bit about the difference when a when a married couple buys what are the differences in terms of survivorship or transfer property or maybe it's not important and it's overstated how important is specifying for a married couple uh joint tenancy versus community property or or not or separate property if there maybe have a prior marriage situation yeah titling is one of my featured topics when I'm giving talks and when I'm talking to clients. I mean, the vast majority of our clients, since we do a lot of estate planning, excuse me, in addition to probate, you know, we're forming, helping clients establish living trust and living, if you own property and it's titled in a living trust, then you get a pass from probate. So it's typically the best way

a whole title. There are some exceptions, but let's say somebody didn't want to married couple, they just didn't want to do a living trust or hadn't gotten around to it. So they said, well, we'll get to that soon. And but meanwhile, when you close escrow, you have to, you know, and many real estate agents are asked by their clients. The sort of the responsible thing to do would be to say if you're a realtor is to say, I can't give you specific advice about that or I'm not supposed to because I'm not an attorney and it has important legal and tax ramifications. CAR form, purchase and sale agreement has got in bold, as everybody knows and has for years. It says, hey, the manner of taking title has serious legal and tax ramifications.

And it does. So the joint type of. In California, at least, in other states, there are some different forms of holding title. There's tenants of the entirety, and there's some other forms that aren't here in California. But in California, there's joint tenancy, there's community property, there's community property with rights of survivorship, right of survivorship, and then there's tenants in common. And basically going through tenants in common is undivided interest. So if you own tenants in common, you have an undivided 50% interest with whoever the other tenants in common are. If you do that with your spouse, that's usually the worst way to hold title because it pretty much guarantees a probate.

There's no right of survivorship. There's no sort of automatic transfer when one tenant in common dies. Tenants in common is very appropriate if you take title with a friend or your brother or sister or a parent or whatever, because each party wants to be able to do whatever they want with the asset when they die. So if you have a will and you have tenants in common, you can will your 50% to whoever you want. So their tenants in common has a place, but it's very rare that that would be, I can't think of an instance where that would be advantageous for a married couple. You really want something with writer's survivorship.

What does that mean? It means that upon the death of the first co-owner, and here we're talking about spouses, there's sort of an automatic, by operation of law, automatically the surviving co-owner owns the interest that was held by the deceased co-owner. That's only possible with two forms of title here. Community property with right of survivorship and joint tenancy. And so it doesn't mean it's absolutely 100%. As soon as the person dies, you own it, you have to file a form, but it's perfunctory.

There's an affidavit that gets filed with a death certificate, and then title is cleared in the name of the surviving spouse. So it's pretty easy and straightforward. There's a catch with community property. Here you can hold title as just community property. That doesn't hold with it a right of survivorship. If a married couple holds title just as community property, but it doesn't have that tag right of survivorship, then it's going to require a spousal property petition, all that cost and inconvenience, just because they didn't specify on the title with right of survivorship. Wow.

I didn't realize that. Well, thank you for clarification. That's important. And of course, you asked the customer this question when they're faced with like two million pieces of paper sign and review and they're liable for every single word of every one of the two million pieces of paper and it's you you know as an agent you can't say well this is what's really important of all that stack this is one to get right but part of me wants to say from a business point of view that's when to get right make

sure you have the right you know in some cases people don't want to have survivorship maybe there's a prior marriage and they have kids they want to provide for from the prior marriage and so that's not the appropriate way good reason to get in the state plan good reason to try this rather than then And I'll leave it to the deed. But that said, and the other thing, just to add a little mustard on your comment, you're going to take title as something, right? If you're going to buy the property, the escrow at the end of the day is going to put something,

I'm sorry about that, my district expert, you're going to get a deed from the seller to you. And so the question is, what's I going to say? And I've been in court where people bought property overbids and the judge will say, how you can take title of it and say, well, just Bob and, you're going to be a Bob and Mary Smith, okay, but how do you want to take a title? And the judge can't give it legal advice, and you know they're taking it wrong. They're going to get a deed.

This is Bob and Mary Smith, and that's probably not really what they want at the end of the day. So thanks for all that. Yeah, just to interject Bill about that. Bob and Mary Smith, somebody who's attending this might say, well, he didn't say anything about just the names, Rob. You said tenants in common, joint tenants, et cetera. Bob and Mary Smith, that's deemed to be tenants in common. If it doesn't specify the default is tenants in common.

Well, I think it's the worst. I've always the whole title. As a real estate agent, that's the most problematic because you have no survivorship issues, you have tax implication issues, reassessment issues. You might have legal issues on who gets to make decisions, who gets to live there. I mean, it just really opens up a can of worms that, you know, certainly can be prevented with proper planning. But when they just say, oh, just Bob and Bruce is fine.

And as long as you get along with your wife, I guess it's all fine. As long as you're both alive, you know, it's great. It's only a problem when it becomes a problem. And just another point is that a lot of title companies have this chart and this matrix and it's complicated. And they've got on one side the forms of holding title and the other kind of the various implications. And you read it and your eyes, you know, twirl around in your head. And it's very difficult. I mean, yes, it's better than not having any instructions or any information.

I years ago thought there's got to be a better way. So I put together a digital brochure on the various forms of holding title in California and the pros and cons of them. Anybody who's most sitting here can is happy, you know, watching can send me an email. And I'd be happy to send them, it doesn't cost anything, just happy to send them my digital brochure on the manner of holding title and a brief summary of the pros and cons. But of course, the best alternative is make sure you get it right when you buy the property because the other thing that happens is, well, we'll just do it now this way and then we'll fix it later. A, sometimes they don't fix it later. That's, I think, sometimes a Hexteat petition.

Well, we meant to fix it, we forgot to. Or, B, it's not insured, and you kind of lose the advantage of the Italian insurance. Not that it's all and all, but you're paying for it. Why not get that transaction insured? So there's no question who you meant to send it to. Excuse me. Okay. Next topic I want to run by you is the new $750,000 threshold, AB2016,

streamlined probate. A lot of fanfare was passed. How active do you see that actually in the marketplace? Well, it's a brand new law or relatively new. It's new as of 2025 in February, at the end of February of 2025, new law passed in California that was designed to sort of streamline and make a lot less expensive and a lot less bureaucratic. The process, of transferring on death a piece of real property. If somebody dies and substantially, and they only have a property that was a principal residence and is valued at date of death of $750,000 or less.

We know California is expensive in general, and that doesn't work with a lot of properties, but there are lots and lots of properties still in California. that are not worth more than $750,000. If that's all or substantially all you have and you die, there is an expedited procedure where the, essentially it's done by valuing the property. You get to a probate referee who's basically like an appraiser who is associated with the county in which the person died. and you have them do a what's called an inventory and appraisal that just says okay this 123 main street in

you know a wonderful city is was the owned by the decedent and and the appraiser or the probate referee says yes it was worth you know 650,000 dollars on date of death you take that inventory and appraisal and there is a form that gets filed and signed by the rightful successors. That could be the people in a will who it's a valid will that was signed and says, my property goes to Betty. Then Betty signs the affidavit and files that in probate court with the inventory and appraisal showing the valuation. And that effectively is the end of it. And that, and that again serves as evidence of that concrete, you know, definitive evidence that Betty is the new owner. And so it can be very useful. The catch or one of the catches is

it's got to be a principal residence. It's got to be under $750,000. And if there are, let's say there's bank accounts and there are investment accounts and other assets. assets, automobiles, and all that is, you know, three or four or $500,000. Well, then you have to do a probate for those assets. And at some point, you may just, it may be, well, let's just throw in the real estate and do a probate with all this stuff. Or you can do an expedited probate with the principal residence for under 750. and you can do a smaller probate.

So all told, it's going to be less expensive to do that. If you have less than $208,850, it's a weird number. So let's just round it off and say if you have an aggregate of less than a couple hundred thousand dollars of other assets, then you can do what's called a small estate affidavit for that property. And you can do the expedited probate for the $7,000. $150,000 or less real estate. So you have to sort of look at all the various assets, but when it fits, it is, it's much quicker and much less expensive than doing a, it's sort of like another option. You've got, you know, full probate, you have spousal property petition. When that fits,

You have an expedited probate with the 750 or less, and then you have this small estate affidavit, which can't involve real estate. That's just miscellaneous kind of personal property. So it's like a puzzle, and you just make sure that the pieces work, how do the pieces work best for the client to make sure that the process and the costs are sort of minimized? I know when this was passed, there was a lot of excitement. A few attorneys in particular were putting together, you know, fixed price options for this and some streamline procedures for this and anticipated, but I just don't think I've seen that many

of them. The attorneys I've talked to, I haven't talked to anybody who's done one yet. I've seen some that started, and then there were hiccups along the way that prevented it. But it seems to be one of those things that it sounds great in practice, but there's not that many that fit that bill here in California. It's true. I have a very, very active probate practice. And I'm doing a few of them, but not, you know, you would think, well, this is going to be very prevalent because it's such a great thing. And it is when it fits. But, and I started one actually a couple months ago. The client was

quite sure that the property, a lot of deferred maintenance, that the property was worth less than 750. We sent it to the probate referee. I said, I'll try it. No guarantees. And I'll bill you on an hourly basis for it. And it's not going to be all that expensive because there's not much in the process. And the appraisal came back at $875,000. And my client said, well, can you go back to the probate referee and maybe have them adjust it to lower it? And I said, yes, you know, give me a list of all the defects and the problems with the property. And ultimately, the bottom line is the client threw his hands up and said, Rob, there's no way that we can list enough defects that's going to lower it that much in value.

We don't really have any choice. Let's just go with the full probate. You warn me, Rob, that we may have to do that. So sometimes you don't know until you run it by the probate referee and get the inventory and appraisal. So that's another issue and that can be a little bit in time and cost before you even know whether or not you're going to qualify for this if it's going to be close. I will say to the real estate agent's listening, this is a chance to help out because the inventory pays report probate referee theoretically does it drive by only. They don't get

access to the inside. I mean, I'm in a disparage an organization, but I don't believe they actually drive by the property. There was a time when they would charge extra for photos and be like 50 bucks or 75 bucks in the old days and I saw that you know up until recently it seems like it just stopped and I'm not sure exactly why but I don't actually believe in my experience and I'm not here talking about any particular case they actually do drive by and so it creates opportunity that if we have good information give it to them before they do the report so if we can show comparables and we show how much nicer they are and how much it would cost to get to that level, then you can get that to the report, the referee beforehand.

And I find most of them appreciate their, they're listed publicly. If you know the name or when they file the probate, the name of the probate attorney, pro referees on the forum, you can find who they are and coordinate that with the attorney obviously and your client, but you can cooperate to send them information ahead time. And I think this is one of the opportunities of realtors we have to create some extra value because like in your case, if it was, if it was true that you get them to come below, not doing anything to fairies.

I'm saying, just. Give them comps, give them pictures. Show the photos of the comparables with the beautiful kitchens and the views. And then your house that's falling apart. You're saving a customer way more than your commission. That's really where you're in money for customers, I think. 100%. That's a great comment.

There's no reason whatsoever not to provide the information before, you know, before they do that. And you can always supplement that with even additional information. And you're also very right. on drive-bys, I don't, I'm sure some do it. But as a percentage, I'm sure it's very, very rare that where they actually take the time to do it. I mean, to their, you know, to their credit,

the information that's available is so robust that probably a lot of times there's not a big need for them to drive by. And what are you gonna get from driving by? You may get some information, but it's limited The only really effective way to determine if there's substantial defects and so forth is to actually go visit and go in the property. And I can tell you that that doesn't happen or that's extremely rare.

Yeah, and the old days you didn't know if the house next door was a crack house or heavy traffic just by the address. Nowadays with Google Maps and AMLS, you can really hone in and see most of those. So again, I don't know that private referees need to drive by. but we as real estate agents that we know we've been to the property we know more the opportunity is to share more information and and I think at the end of the day more information helps everybody one of the lessors I wanted to chat about a little bit because I know you have experience with this is special

administration right there's there's the normal case your your file a petition either for full or limited authority and there's it takes certain time and there's you know defined rules but there are times when you can't agree on who's in charge or you can't wait to get somebody appointed for our all of the authority, but something specific has to be done. Talk a bit about the tool of special administration and how you can use that to help protect an estate. Yeah, special administration is a very important tool. And essentially, when you file a petition for probate, that is, we call sort of general administration. And that requires a notice hearing. And most of the courts

in California are sort of undermanned and don't have enough support. And so what happens is the time between the filing of the petition for probate and the hearing where if it's approved, letters of administration are issued, which really starts the probate and authorizes the personal representative to do things like sell the real estate and take control of the assets and really start it material. really is a long, long period of time, two, three months at least, but some courts are even further out than that. So there are times when, let's say there's a reverse mortgage and there's a foreclosure notice or a foreclosure.

It happens. Right. I have a whole podcast in this topic, by the way, a whole separate podcast, reverse mortgages. I'm sorry, go ahead, but yeah, that happens regularly. Yes, it does. It's common. And so there just isn't time. And so you, so when you file the petition for general administration, this sort of normal petition

for probate, there's a box check, special administration, and then you have there's some attachments, and essentially you explain to the court why there's some urgency to get this heard and to allow the your client as my client as the proposed personal representative to have certain power, early. They can't do everything that you could do because that would be just the general administration. That requires a notice hearing. But you can take control, for example, you can ask to take control of the real estate to get it sold because it has a reverse mortgage, to be able to pay bills and, you know, creditors and to manage the property that has tenants in it. There are so many different situations where there's more urgency.

There's a squatter in the property. Or, you know, there's been, there's been, you know, damage done by, you know, derelicts in the neighborhood. And somebody needs sooner rather than later to actually have authority to go in and take control. So you spell out the particular powers that you are asking for. And you can do that on an expedited basis. Different courts have different periods of time and different processes, but essentially you can usually get that done in a short period of time as a week or a few weeks, as opposed to waiting three, four, five months for a general probate hearing.

And so that's appropriate for closures. I think is the number one most common example I see of that, managing property, collecting rents, paying bills, paying mortgages, I think running businesses is another one I see occasionally where I have one case where we the petitioner had to you know make payroll and collect money and transfer accounts and such and so the court allowed them to do that of course have to have a bond and there's you know there's other you know protections that the court's going to impose and things like right so well look Rob I really appreciate a chance to kind of get into

some details you obviously are very experienced these matters and to get in some of the little weeds a bit nuances I appreciate I know I learned quite a bit when I speak to you, and I hope on behalf of people who listen as well do. Best way to get touch you of you, someone wants more information or to engage your firm for probate or related material. Silvermanjaffee.com is the website. Right. And up front, we have also the phone number as well as contact information.

Robert Sman, thank you again so much for being available today to share with us. Again, you've been so kind of the time overall in the past. And happy holidays and continue success, and we'll talk to you soon. Always enjoy it, Bill. Thanks for having me and happy holidays to you and the folks who are attending as well. Thanks so much. And this is probate weekly. We get together every week and issue new episode.

Usually with probate attorneys like Rob Sorbman, actually not often as good as that and was much detail. But I try to learn to be better at our craft, whether it be for attorneys or real estate agents or vendors, how to be more successful helping our customers. If I can help, please like, subscribe, reply, email. Do you have suggestions for topics and or guests? Let me know. I'm at Bill Grows Probate, as always, make today your best day ever. Thanks so much.