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Who pays for administrator and probate costs?

San Diego, CA |

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.

Attorney Answers 3


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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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.

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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.

THESE COMMENTS ARE NOT LEGAL ADVICE. They are provided for informational purposes only. Actual legal advice can only be provided after consultation by an attorney licensed in your jurisdiction. The answer to question does not create an attorney-client relationship or otherwise require further consultation. Mrs. Cook is licensed to practice law throughout the state of California with offices in San Diego County. She is authorized to handle IRS matters throughout the United States, and is also licensed to practice before the United States Tax Court. IRS CIRCULAR 230 DISCLOSURE: To ensure compliance with requirements imposed by the IRS, please be advised that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used or relied upon, and cannot be used or relied upon, 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.

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