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My spouse passed away and I received a request from Franchise Tax Board for Probate details for estate.

San Jose, CA |

i am the beneficiary
, and we have no will.
Home is in both our names, all children are adults(his & mine) and are on their own. Am I only entitled to 1/3 of our community property ? And do I need to go through Probate.

Attorney Answers 3


  1. You are entitle to 100 percent of community property and 1/3 of separate property. If the house was held in joint tenancy or cp you are entitled to 100 percent of that.

    You should consult an attorney to determine if probate is necessary based on your husbands total assets and what response if any is necessary for the FTB. It sounds like your husband make owe state income taxes.

    The general advice above does not constitute an attorney-client relationship: you haven't hired me or my firm or given me confidential information by posting on this public forum, and my answer on this public forum does not constitute attorney-client advice. IRS Circular 230 Disclosure: In order to comply with requirements imposed by the Internal Revenue Service, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein. While I am licensed to practice in New York and California, I do not actively practice in New York. Regardless, nothing said should be deemed an opinion of law of any state. All readers need to do their own research or pay an attorney for a legal opinion if one is necessary or desired.


  2. Agree with colleague,. In addition, you need create an estate plan. It is advisable to consult with an attorney.

    Mr.Scalise offers a FREE consultation; he may be reached at 805-244-6850 or by email (craig@scaliselawfirm.com). My responses to questions posted here intended as helpful legal information not legal advice. The information I post does not create an attorney-client relationship. Mr. Scalise is licensed to practice law in California. If you would like to obtain specific legal advice about this issue, you must contact an attorney who is licensed to practice law in your state, and retain him/her.


  3. This is tricky as there might be other "property" issues than real estate here. If the house was held as joint tenancy and this is the only issue, then the house won't need to go through probate. If there are other assets, then it all depends on how those assets were titled. I suggest that you seen an attorney to decide if a Probate action is required.

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