Spouses and Community Property With Right Of Survivorship. Spouses may also avoid probate by holding title to real property as "community property with right of survivorship." Unlike joint tenancy, which by definition always includes the right of survivorship, community property without the specific designation "by right of survivorship," does not pass by survivorship. In that case, at the death of one spouse, only his or her half of the community property goes to the surviving spouse unless he or she left a will that directs otherwise.

If there is no will, community property that is given to a spouse can avoid probate if a spousal property petition is used. After the death of a spouse, a spousal prospanperty petition will transfer assets from the deceased spouse to the surviving spouse (or domestic partner). It is a simplified probate, and takes much less time than a full probate. Legal fees are usually much lower for a spousal property petition than a full probate.

Simplified Procedures. The California Probate Code provides that probate estates of $150,000 or less do not need to be probated. If the estate consists of assets in excess of $150,000 a probate is necessary. The $150,000 amount is calculated by totaling all of the probate assets owned by the decedent. In some cases, the actual estate may be well in excess of $150,000, but the small estate law can still be used. The reason is that many assets are not defined as probate assets, such as life insurance (unless it was payable to the estate), IRAs, 401Ks, assets held by a living trust, and joint tenancy assets.

Spousal Petition. A spouse may file a spousal petition with court where an asset (regardless of type) passes under the Will or by intestate succession to the surviving spouse. The transfer occurs by way of a separate petition (generally referred to as a spousal property petition) executed by the beneficiary and filed with court. A court hearing is required. The purpose of this petition is to change the titles of the assets to the surviving spouse's ownership. The petition is a simplified probate procedure, and takes much less time than a full probate. Legal fees are usually much lower for this type of petition than a full probate.