Does a surviving spouse have to go through probate?

Frequently not. Where property passes to a spouse, a single petition can replace an entire administration.

Frequently not. Where property passes to a surviving spouse or registered domestic partner, California offers a procedure that replaces the whole administration with one petition: a spousal property petition.

One filing, one hearing, a few weeks, and a court order confirming that the property belongs to the survivor. No letters, no inventory, no creditor period, no four-month wait, and no statutory fee schedule.

When it is available

It turns on two questions, and both are answered by documents you already have.

How was the property held? Community property passing to the survivor is the straightforward case. So is property the couple held together in a form that makes the survivor's entitlement clear.

What does the will say? If there is a will leaving the property to the spouse, that can support the petition too. If the will leaves it elsewhere, or splits it, the route narrows.

When it is not available

• Where the property was the deceased spouse's separate property passing to someone other than the survivor.
• Where the will divides an asset between the spouse and others, which usually needs a full administration for the part that is not the spouse's.
• Where title is genuinely unclear, or a prior marriage, a prior deed, or a commingled account has left a real question about who owned what.

The mistake worth avoiding

We have seen families open a full probate and only discover months in that a spousal property petition would have done. Going backwards from that point is possible and it is not free.

Ask the question before anything is filed. It costs a conversation, and the answer is usually visible on the face of the deed.