What happens when a parent and/or spouse, dies, and all of the property is in their name? Probate proceedings can take several months, and sometimes years, before estate property can be distributed. A probate homestead allows a grieving family to remain in the residence, as well as retain household furniture, apparel, and other property (some jewelry, health aids, recent wages, retirement), up to a certain dollar amount within each category. The homestead also secures the property from the reach of creditors, as well as more distant heirs and beneficiaries who might otherwise be entitled to it.
A homestead is available only to the decedent’s surviving spouse or registered domestic partner, and/or minor children. The probate homestead arises even without an order from the probate court, until an inventory is filed by the probate representative (usually at least three months after probate has been filed), and for a period of 60 days thereafter, or for longer, if “good cause” is shown. A longer time period, however, may only be obtained by filing a properly noticed petition with the probate court.
The need for probate homestead, however, is actually very rare. That’s because the purpose of a homestead, which is to obtain estate property immediately for the spouse and children, is generally satisfied by one of the following: the property was held in joint tenancy or as community property with right of survivorship, and therefore passes automatically and outside probate, or; the property passes through the community, quasi-community or separate property set-aside procedures, and therefore can be obtained through a spousal petition (an abbreviated probate procedure); or the decedent’s probate property (anything not in trust, and not subject to a beneficiary designation or pay on death provision) is worth less than $150,000, in which case an Affidavit of Small Estate can be used to obtain the property. You can read about spousal petitions and Affidavits of Small Estate in our blog, here.