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How to Execute the Estate after My Spouse's Death

In the case of dying without a living trust, if the property of the deceased is jointly accumulated, although it is considered separate property of the deceased, you will file a Spousal Property petition. On the other hand, if the property is accumulated before marriage or given/inherited properties before or after marriage, you will file a probate process.

The probate court addresses both, but the Spousal Property petition takes relatively less time and lawyer fees. In the case of the petition, the spouse must prove that he or she is the first-priority inheritor who can receive the property according to the estate law.

For example, one must accurately prove when he or she married and moved to California with the deceased and when and why the deceased acquired the property in his name only.

For instance, a married couple purchased a property with a joint fund after starting their marriage. However, since the wife was traveling to Korea alone at that time, only the husband had signed the purchase agreement. The husband owned the property individually and then died. Since the property is the husband's separate property in name only for convenience, the petition will be processed without any issue.

However, if the separate and marital properties are mixed, depending on the court's capacity, the court may reject the petition, and you may eventually need to go through a probate process.

Let's say parents gave a property to their daughter while they were alive. After she was married, the daughter died. In this case, the property is considered the daughter's separate property, so her family will inherit the property according to the priority of inheritance.

If the daughter has no children but only a spouse, the spouse will inherit half of the property, and the parents will receive the other half. If the daughter has a spouse and a child, her parents will not inherit any; half of the property will be given to the spouse and the other to the child.

On the other hand, if the daughter has more than two children, the spouse will inherit 1/3, and the children will receive 2/3 of the property. Therefore, her spouse can inherit 100% of marital properties, and her separate property will be given to her family depending on the number of her children.


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