California Spousal Property Petition Form DE-221

[Music] Five is Keith Davidson at Albertson and Davidson in this video I'm gonna be discussing spousal property petitions now this is a very effective tool to use if one spouse passes away and leaves assets to the surviving spouse under the probate code the surviving spouse does not have to go through a full-blown probate administration and a lot of people don't know that people don't know it and there's attorneys who don't know it but you do not have to do a full-blown probate to pass asked to pass assets out from one spouse to another spouse instead you can use a spousal property petition and I'll walk you through that and show you how it works so we always start by going to the California Judicial Council site I just put it into Google and I find the link for California Judicial Council and once we're on that site you can go up to forms and rules you can browse the forms and we'll just go down and we're using the probate forms decedent's estates and there you have it so under decedent's estates we are going to be looking for form number two - one de - - one which is our California spousal or domestic partner property petition so in California we do have registered domestic partners everything I say about a spouse applies to a registered domestic partner as well and we're gonna go to that form so here is the forum and really there's two different things that you're gonna do with this forum and I'll show you as we walk through it number one you're gonna ask the court to confirm what property already belongs to the surviving spouse so if you have community property in California fifty percent of it belongs to the deceased spouse and fifty percent belongs to the surviving spouse so this petition is going to ask the court to confirm that the surviving spouse already owns half the property as their share or the community property the forms also going to ask the court to transfer the other half that the decedent owned to the surviving spouse so we're gonna start up top here and if you're representing yourself on this sort of form you can just put your own name in here but if you have an attorney then we'll go ahead and type the attorneys name and bar number and then we'll put in the name of the law firm and we'll put in all the other relevant address information you also want to make sure that you fill in obviously your phone numbers so the court can get ahold of you if you have a fax number it's now optional you can include that you definitely want to put your email because that is one way that the court can get a hold of you and you can say who you're the attorney for let's go ahead and use Nancy Smith oops if I can type so Nancy Smith is going to bring this spousal property petition and it's going to be for the transfer of community property and our husband's separate property to her so then you can type in the county whatever county you're in and don't forget to put the street address of the court and also the mailing address and a lot of courts that they're the same some courts are different you can look that up on the courts website and you can put in the branch name if you know it and if you don't you can look it up on the website and if you still can't find it you can just leave that part blank so we're gonna do the estate of Bob Smith and if you don't have a case number over here don't worry about it the court will assign one when you file this form the courts also going to assign you a hearing date and it will assign the Department and the time of the hearing for you so all of this can be left blank when you fill out this form and then you have to say whether you're bringing a spousal or domestic partner property petition will do spousal everything I'm about to say applies equally to either group so again we're gonna put the petitioners name which is our client Nancy Smith and we're going to check the appropriate box so under 1a this is for a determination of property passing to the surviving spouse without administration so this is all the property that is owned by the deceased spouse that we want to pass as a survivor so we're gonna check a B is confirmation of property already belonging to the surviving spouse so the surviving spouse already owns 50% of the community property we want the court to confirm that and to confirm that half of it is already owned by our client Nancy Smith so B is what Nancy owns a is what Bob Smith owns but we want transferred to Nancy Smith and then you can also ask for the immediate appointment of appropriate referee if you need evaluation probate referees are normally assigned in regular probates but since we're doing this form we're not doing a regular probate so you can ask for a probate referee to be assigned in order to value the asset if you need that and then you have to tell the court who the petitioner is in our case the petitioner is the surviving spouse of the decedent but maybe the surviving spouse has already passed away in that case the surviving spouses personal representative can bring this petition or if the surviving spouse is incapacitated then the spouse's conservatory guardian can bring it and then the rest of it is the registered domestic partner same thing just a different title so now we're going to put when decedent died so let's say our decedent Bob Smith died on August 1st 2018 and we have to say where he was a resident of so Bob Smith was a resident of the California County named above now this is important because you're supposed to file this form in the same County where you would file a probate so even though we're not doing a probate you filed this petition in the same County where you would file if you were doing a probate so that's why we have to tell the court yes he was a resident of the county we're filing in if you're filing in Los Angeles but Bob Smith was a resident of San Diego County you're in the wrong County you need to switch courts so that's an important function now if Bob Smith was not a resident of California but he left real property in this state then you're gonna probably click B and B is Bob Smith was a non resident of California but he left an estate in the county named above meaning he left real property that's in that county so Bob Smith lived in Arizona but he owned a home in Los Angeles County then you'd file for B and you'd file this petition in Los Angeles County and then you need to say whether or not decedent died intestate or testate and that all the courts asking you there is whether or not bob had a will if he died with the will he's test date if he died without a will he's intestate it's just that simple so we'll say Bob Smith had a will and we'll check the box for test date and then we're gonna have to attach copies of the will to this petition so the court can see it because the court wants to know did Bob Smith leave his share of the community and his separate property to Nancy Smith because that's the authority that the court will use to now transfer this those assets to Nancy Smith if Bob Smith's will says I leave all of my property to somebody else to my children and I leave Nancy nothing then this forms not gonna work to transfer that property to Nancy because Nancy doesn't have a legal right to that property so the court wants to know what is Nancy's legal right to this property and it's either gonna be the will because that's where the assets flow from or it's going to be her rights under the intestate laws if there's no we'll keep in mind we're only talking about property that would otherwise go through the probate process if you have a trust and the trust has whatever provisions and it gives Nancy whatever property it says you're never going to use this form you're never going to need a probate administration this is only for those cases where you have a probate administration that you otherwise would do but we're not going to do it because Nancy is a surviving spouse so we told the court that Bob Smith was a resident California he died with the will and let's assume that the will just leaves everything to Nancy we'll make it easy now five eight the court wants to know who else was the decedent survived by because these people are gonna have to get notice we want everybody to know what's going on here so you can say no child or child as follows natural or adopted or natural but adopted by a third party meaning he had a child but that child was put up for adoption and somebody else adopted the child and then you have to say whether or not decedent has survived by any stepchildren or foster children stepchildren our foster children sometimes have the rights of regular children depending on the nature of their relationship and sometimes they don't so you have to say that number six and you'll see later by the way on number five you'll see that we're gonna give notice to every everybody that we check the box on in five they're gonna have to get notice of this petition because they may want to object to it if they think for some reason Nancy doesn't have a legal right to the property on number six you only complete this if there is no issue survived by the decedent that's not our case in our case we're gonna say that Bob and Nancy had children and that makes it easy now number seven this is really the important part of this whole form because this is why this is what we're telling the court administration of the estate meaning probate of the estate is not necessary because of the following reasons and you're going to have to do an attachment and you're gonna have to describe the facts so on seven a we're saying on attachment seven a there's a legal description of the deceased spouse's so we're talking about Bob's property that Nancy wants a court order on saying that that prop he passes to Nancy so on 7a we need to describe any interest any property anything any anything that that Bob had that's going to go to Nancy on 7b this is going to be a description of all the property or quasi-community property petitioner quest to be determined as having belonged to her so 7b is a listing of all of Nancy's property and then you want to say this is the property that should belong to Nancy number eight is a little unique this is if there is a written agreement between the spouses about a non pro rata division so maybe the spouses had agreed before death that rather than splitting all the assets down the middle 50/50 one spouse would get a hundred percent of one house for example and another spouse would get a hundred percent of a different house whatever it is if there's a written agreement you need to tell the court that and attach a copy in most cases there isn't unless you have a premarital agreement or post marital agreement but if there is then you need to check that box we're going to assume that there's not here a number nine this is where we have the names of relationships and ages of everybody that we described in box number five so all of those children need to get notice we usually just say that all of these people are listed in an attachment and then we're going to type in here see attachment and the reason we do this is so we can have a separate word document where we list all of the kids and their addresses and we can use it for different forms along the way if you type it into here first of all there's not much room there's only three lines and secondly you have to type it each time it's easier just to have it on a separate document and you can maintain it so you can just hit see attachment and attach all the people that you're gonna serve with this document and then you also have to serve everybody who's listed as the executor and decedent's will and you're either going to list them below or you can again use an attachment I would highly recommend you use an attachment just so you can use it again on any other forms that you have and just put see attachment and of course if there are no executives described in decedent's will because they didn't have a well you can just hit none over here on this side now number 11 is kind of interesting there was a problem in the past where if the will the deceased spouses will gave all of his property to a trust but the trust was held for the sole benefit of the spouse you couldn't use this form so let's say Bob bobs will says I give all my property to a trust but the trust is the only beneficiary the trust is Nancy so Nancy isn't technically a beneficiary under the will the trust is but for all practical purposes Nancy is a beneficiary under the will because it just goes to the trust and the trust passes it out to Nancy so number 11 you can check that box and you can say yes that's the case and the court can still grant this petition so that's an update that's a really nice update to the form so that you don't have to be able to preclude be precluded from using this form just because there's a trust involved number 12 we have a petition for probate for administration the court wants to know whether one has been filed so it either is being filed with this petition it already was filed or it's not being filed and it's not going to be filed this form this petition for to pass property to the spouse can be used even if there is a probate ongoing because some property may not go to the spouse so you might have some property passing to the spouse other property not passing to the spouse you can still use this form the spouse still has the right and ask the right to go in and ask the court to order their share of the property to pass out to them and that's really what number twelve is about is is there a petition pending or not and then you're going to put the number of pages you've attached we have a number of attachments that we've discussed however many pages you have you just need to tell the court you know maybe you have four or five six pages doesn't matter just put that number in there and then you're going to date it and you're gonna the attorney will sign on the first line as having prepared this and then you notice that on the second line this is what we call a verification so this is where the clients going to sign so Nancy Smith is going to sign this part and you'll see right here it says I declared a penalty of perjury under the laws of state of California that the foregoing is true and correct and that's just the courts way of getting a declaration from Nancy and appellant of penalty of perjury that everything that was said in this form in every box that was checked and every fact stated in an attachment is true so we don't want to be in a position where a spouse is saying there's a will when there really isn't and that sort of thing so now Nancy's under the penalty of perjury to tell the truth so that's the petition that you're going to file and let's quickly take a look at the order that comes from this so the order is found on probate probate form de 2 to 6 so 2 to 1 is the petition that's what starts the process you file that first the order is what finishes the process that's where the court is going to issue an order and you can see that it's very similar it's the petition in the sense that you're going to do a spousal property petition of course you'll fill out all the top part just like we did with the petition only now you're going to fill in the date of the hearing the time the Department and the room number and so all of that will be filled out after the hearing either by you or it might be filled out by the court if the court requires you to file this order prior to the hearing which some courts do and then you're going to put down here what was found so decedent died on and it's the same information that we had in the petition and they were a resident of California and they were testate and they had a surviving spouse and the name of the surviving spouse is Nancy Smith and so it's just recapping all of the important facts and then we're going to come down here to 5a 5a is the property a description of the property that's passing to the surviving spouse and then in number 6 this is where the spouse may be required to file what we call an undertaking it's kind of like a bond if there's any known creditors of the estate so creditors definitely have to be paid creditors at the decedent and the creditors have a right to go against the decedent's property well that property is now passing the to Nancy so Nancy is liable for that debt to the extent she received property from Bob's estate and number six is just where the court may require her to post a bond in order to make sure that those creditors are paid and then number seven this is where the spousal this is where we actually have the order so 7a is the property described in attachment a is property that belongs to the surviving spouse so 7a is confirming all of Nancy's property what she already owns and then under number 8 all property described in the petition that is not determined to be property that passes to Nancy in our example or confirmed as belonging to Nancy shall be subject to administration the estate of the decedent so all number 8 means is that to the extent there's something that Nancy doesn't receive or doesn't already own that property does have to go through probate and if any if there's known property if you know of something then you have to check this box and fill out an attachment and then number nine is just a point where you can put any other orders that the court wishes the issue and then you'd put the number of pages attached because there's a number of attachments here and once you do that then you can submit that to the court the judge can sign it and once the judge signs it then you have a completed spousal property petition and now the spouse can receive the property of the decedent without having to go through a full-blown probate process so that's the California spousal property petition and the spousal property order. [Music] [Applause] [Music]