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Would I be required to go to probate court if my husband left me his income property to pay off credit debt & overdue utilities?

Covina, CA |

He left behind a lot of credit debt and thousands in past due utilities on the rental property. Would I be able to continue making payments instead of selling the property? I was not on loan or title and he was sole owner

Is the below statement True to avoid probate for estates over $150k?
All assets that go to a surviving spouse, including any assets the person who died owned separately in his or her name but were left in the will or by intestate succession to the surviving spouse

Attorney Answers 6


  1. Best answer

    Probate is the process to transfer assets from the decedent to the beneficiaries. If there is no will, you still open a probate case so you can get the real estate in your name. You must continue making the payments if you want to avoid a foreclosure. Credit card debt and utilities on the rental are up to them to collect from the "estate" and they must file claims against the "estate". Contact a Probate attorney offering a free consultation by clicking on the Find a Lawyer on AVVO. Good luck.


  2. Unfortunately, the $150k plateau is based on fair market value and not net equity. So if the income property is worth more than $150k (and he did not have a living trust) the estate should be probated.


  3. Probate is to transfer title to you. You will have to go through probate or some type of shorter process with the court (like a spousal property petition). See an estate planning attorney for help. You will need to transfer title to rent it, to sell it or to refinance it. Feel free to call me if you have questions. I live in Covina.

    The response to this question does NOT create an attorney client relationship and is an effort to provide a gratuitous general response without ability to determine accurate facts. An attorney client relationship can be implemented only be a formal engagement letter accepting representation. Do not rely on the response provided herein as advice to you.


  4. No, unless the property was in joint tenancy or a trust, probate will be necessary. You can continue paying the debts. As long as you can keep them current, you will be able avoid selling the property. The question become whether his debts were community property or separate property. If they were his separate debt and the debts exceed the liabilities, you may want to consider letting the property go.

    You should consult with a probate attorney.

    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.


  5. There are too many variables to give you a definitive answer on your statement. But your husband's estate will need to be probated. It also depends on his children who have a right to claim any portion of this estate. You can only make the payments if you have authority to administer the estate and the property in the estate. You really need to see a probate attorney. My office can help.


  6. Aside from the issue of whether your husband's estate qualifies for one of the short cut procedures, a full probate may be the best option because in a full probate creditors have a fixed period in which to seek monies from your husband's estate. Also you need to be clear whether the credit card debt is separate or community debt. Whose name is on the card? Please consult a trust and estates lawyers to talk you through the pros and cons of all your options.

    Information provided on Avvo does not constitute legal advice, as it is general in nature and may not apply to your situation. No attorney client relationship exists unless we have both signed a representation agreement which sets forth the terms of my engagement.

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