In this episode of Absolute Trust Talk, Kirsten Howe and associate attorney Jessica Colbert delve into the spousal property petition, a vital tool that offers a faster and more cost-effective way for surviving spouses to claim assets from a deceased spouse’s estate. They break down the legal nuances, sharing practical examples of how this process works and how it can sometimes be used even after both spouses have passed away. With real-world scenarios and expert advice, this episode sheds light on probate alternatives that can ease the estate administration process for families. Whether you’re dealing with estate planning or curious about alternatives to probate, this episode offers invaluable guidance.
Time-stamped Show Notes:
0:00 Introduction
1:30 Spousal Property Petition Explained: Jessica introduces the spousal property petition, explaining how it helps surviving spouses claim assets while avoiding the complexities of probate.
3:15 Learn how a spousal property petition differs from a small estate affidavit, particularly with no asset value limits.
4:20 Jessica shares a case example where the petition was used by a surviving spouse’s representative, simplifying a complex estate situation.
6:00 Closing Thoughts: Kirsten and Jessica discuss their passion for solving complex cases like puzzles, and how their legal expertise helps families find the most efficient solutions.
Transcript:
Hello and welcome to Absolute Trust Talk. I am Kirsten Howe. I’m here with my Associate Attorney, Jessica Colbert, and this is the live version of our podcast here at Absolute Trust Counsel. We just got out of a long period of super hot weather, and finally, it’s getting cool. But it was raining a few minutes ago at my house. Jessica and I are obviously in different locations. Did you get some rain over there in San Francisco?
I didn’t hear or see any. I’ll admit I haven’t been outside this morning but didn’t catch any.
I saw on the news that it was supposed to rain, but it would be just barely, almost nothing. But I’m aware of it because it was loud enough to hear it hitting my roof and skylights. So anyway, that’s good. We always need rain.
We are here today to pick up where we left off. Last time, we were talking about alternatives to probate. Probate is always something we’re planning to or trying to avoid. But in our experience administering our clients’ trusts after somebody passes away, there very often— almost always—is at least one asset that didn’t make it into the trust. Sometimes, that means there will be a probate, but there are alternatives, so sometimes it doesn’t mean a probate. We talked last time about the small estate affidavit, and now we’re going to talk about a procedure that can only be used by the decedent’s surviving spouse. Jessica, do you want to tell us a little bit about this?
Yes, we will be talking about a spousal property petition. This is a petition that the surviving spouse can file with the court, basically asking the court to confirm that assets owned by their now-deceased spouse belong to them as the surviving spouse. They are entitled to it either because they were the beneficiary under their spouse’s will or because, as their spouse, they are their heir and, therefore, entitled to the property. It’s still a court procedure, but it’s not nearly as bad as probate. It’s an extremely streamlined process for surviving spouses.
Right. It’s not as long or complicated, and therefore expensive. Usually, complicated means costly when you’re talking about attorney involvement. It’s not as complex as a probate. Typically, we file one petition called a spousal property petition. We have to give notice to a variety of other possible heirs and beneficiaries, like the children. We get a hearing date when we file our petition, and anybody who wants to object is allowed to file an objection prior to the hearing date or come to the hearing and state their objection. Typically, we attend the hearing on behalf of our client, who would be the surviving spouse. If there are no objections and nothing wrong with what we’ve submitted, the judge will sign an order that says “this property,”—and they’ll list out the various things—“now belongs to the surviving spouse.”
Last time, we discussed the small estate affidavit and said it could only be used if the total value of assets was under the probate threshold, which is $184,500. Is that also the case here?
No, that’s a very important point. The spousal property petition can be used for anything left to the surviving spouse without a trust or inherited by the surviving spouse under intestacy rules. It doesn’t matter the value. Anything the surviving spouse claims can be put into a spousal property petition. But that also brings up the point that if the value is under $184,500, the surviving spouse will probably use a small estate affidavit. They’re not going to bother with the court process. Logically, they’ll only do this if it’s above that amount.
Yeah, that’s a good point. It’s also important to note that this spousal property petition can be used by the surviving spouse’s representative. I’m going to elaborate with an example.
Let’s say a client walks in the door; it’s a child of—both of their parents have passed away. Dad died ten years ago, and Mom just died earlier this year. At the time that Dad died ten years ago, Mom didn’t do any of the legal work that would have been required to handle Dad’s estate. At this point, both Mom and Dad have assets in their names alone; they don’t have beneficiary designations, and the red flags are going up—” Uh oh, do we have to do a probate?” If we’re able to open probate for Mom’s estate, who just died this year, and the child is named as the representative of Mom’s estate, then as the representative of Mom’s estate, the child can file a spousal property petition for Dad’s estate to get Dad’s assets into Mom’s estate, wrap up Dad’s estate fairly quickly, and then only have to finish the probate of Mom’s estate.
Excellent, yeah, we’ve had that a number of times. We’ve even had another probate on top of that in one case quite a few years ago. It’s important to remember that the spousal property petition can only be used to transfer assets from one deceased spouse to the other. That’s why we can’t use it after the second death to get the second spouse’s assets. We can only use it to get the first spouse in this kind of scenario, but it’s a lot easier than doing two probates, for sure.
That’s what we do. These are always fun cases for us—it’s like putting a puzzle together and figuring out how the pieces will fit. How can we make this work? What’s the easiest way to get these assets to the family? What’s the least expensive way? At least me—I’m not going to paint Jessica with this brush—I really nerd out and love these kinds of cases.
No, I like getting creative.
Yeah, it’s fun. Thank you, Jessica. I hope you all learned something useful. We look forward to connecting with you next time.
Resources Related to This Episode:
- Absolute Trust Talk Episode 154: Unlocking Assets Without Probate: The Benefits of Using a Small Estate Affidavit https://absolutetrustcounsel.com/154-unlocking-assets-without-probate-the-benefits-of-using-a-small-estate-affidavit/
- Absolute Trust Talk Episode 143: Can You Avoid Probate without a Trust? https://absolutetrustcounsel.com/143-can-you-avoid-probate-without-a-trust/
- Absolute Trust Talk Episode 123: Why Can’t I Change My Trust After My Spouse Passes Away? https://absolutetrustcounsel.com/why-cant-i-change-my-trust-after-my-spouse-passes-away/
- A Will is Not Enough – Securing Your Legacy with Estate Planning Life can change in an instant. A will is not enough to be prepared. Get free access to our actionable E-book Guidebook #1 and start protecting your legacy today. https://absolutetrustcounsel.com/guidebooks/
- Learn how to comfortably define gray areas and assess your own unique needs to effortlessly build a secure future now. Check out Guidebook #2, Estate Planning Beyond the Basics, here > https://absolutetrustcounsel.com/guidebooks/
- Get our free introductory guide to the most used estate planning tool, family trusts, and understand how we plan to help protect your family. Guidebook #3: https://absolutetrustcounsel.com/guidebooks/
- Absolute Trust Counsel would love to offer access to our Incapacity Planning resource page: https://AbsoluteTrustCounsel.com/Incapacity-Planning/. We’ve collected our top planning information all in one place so listeners can find videos, guidebooks, blog posts, and a host of information with tips and strategies on implementing, planning, and protecting themselves and their loved ones.
- We’re pleased to provide a library of e-books to address common estate planning questions and concerns in practical, easy-to-understand language. https://AbsoluteTrustCounsel.com/Resources/.
- ASK KIRSTEN: If you’d like Kirsten to answer your question on the air, please email her at Info@AbsoluteTrustCounsel.com.
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