My spouse passed away and the estate is going thru probate. As his surviving spouse, I will have 1/2 of the community assets. My spouse's share of community property will be going to his family from a prior marriage. I am confused on what is actually included in the "probate assets". Is my share of the community property included in the total probate estate? And also, do I have to pay costs for administration, etc. out of my share that passes to me as my spousal rights? or is his share of the estate responsible for those costs? thank you.
Elder Law Attorney
In your posting you left out certain key facts that attorneys need to know in order to fully answer your questions. First, you didn't mention whether or not your spouse had a will? Will provisions can change the default rules of how the costs of administration are allocated. Without a will the costs will be allocated pro-rata from each heir's share. Your one half of all community property is yours already. If there is no will then you also have a right to all of your spouse's community property and between 1/3rd and 1/2 of your spouse's separate property. For wills we always have to look to the document first. Take the time to meet with an attorney, bring all of the documents including the probate court documents, it is the best and perhaps the only way you can find answers to these questions.
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3 lawyers agree
Estate Planning Attorney
Only the estate is charged with probate fees and costs. The 1/2 of the community property that is yours is not going to go through probate so you will not be responsible for any fees or costs as it appears you are not entitled to any part of the probate estate per the facts you posted. You do have to work with the executor/administrator to determine what you get to keep as your 1/2 and you may want to have an attorney help you for that so you can get as much that you want as possible.
Estate Planning Attorney
The estate is responsible for its own fees and costs. Determining what is in the probate estate is more complex. Your half share of community property belongs to you, but if there are any questions about what is community, since this is a second family, then you may need to have the court confirm it. Additionally, jointly held assets and beneficiary assets are not part of the probate estate. As mentioned, the will, if any governs the distribution of the probate estate. However, distribution occurs only after all expenses have been paid.
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