Understanding Homestead Protections In California Probate Courts

When you pass, you may assume that your home will be left to your kids or your family, especially if they are still living in your home. But is that always the case? Can you be certain that your family will be able to keep the family home when you are gone?

Could Family Lose the Family Home?

There are a number of occasions where this may not be the case. For example, many people have a life estate, where the other owner on the deed (the remainderman) gets the property upon death. There may be a transfer on death clause, where the property automatically goes to someone else, who is not family, upon death. Creditors may make claims on property.

All of these threaten a family’s ability to remain in a family home after the death of the primary owner.

The Probate Homestead Exemption

But California’s probate homestead exemption can provide some relief.

In the event that there is some document, provision, agreement, or claim that risks removing the family from the family home, the family can petition a California probate court, and ask to remain in the home. The initial petition is temporary, for 60 days, but after that the court can make it permanent. Surviving spouses, minor children, and domestic partners all can file the petition.

If granted, the ability to remain in the home will end either when the surviving spouse passes away, or when the minor children are no longer minors.

The probate exemption will protect the deceased’s new family, if there are two families. So, for example, if you leave the homestead to your wife and kids, and ten years later, you divorce, and remarry, and have kids with a new spouse, your new spouse and kids will get to live in the home—even though your estate documents still say your old wife would get the property.

The exemption also applies to the property in the home, so nobody will be removing the furniture or clothes, leaving your family to live in a barren home.

If you and your spouse agree to sell or give up the home upon your death, your spouse can execute a waiver of this probate homestead protection.

Allowances to Pay Bills

But how will your family pay the bills related to the home, at least, until your estate is probated by a probate court and property and assets transfer to you?

Families can also petition the probate court for a family allowance, giving funds from the estate to the family, to allow them to remain in their standard lifestyle. This allowance will last one year. If necessary, assets in the estate may need to be sold, to provide the liquidity needed to prove the allowance.

Spouse remarriage, or children becoming adults, will cut that one year short, and end the allowance.

Call the Torrance will and estate attorneys at Samuel Ford Law today for help understanding how the probate court works, and how to protect your homestead property.

Sources:

law.justia.com/codes/california/2010/prob/6520-6528.html

casetext.com/statute/california-codes/california-probate-code/division-6-wills-and-intestate-succession/part-3-family-protection/chapter-3-setting-aside-probate-homestead/section-6520-setting-apart-probate-homestead