Good morning, Sean, and thanks for your updated information. I will answer your general question, based upon the limited information that you have provided, so as to avoid any further delay.
The California Probate Code establishes an optional procedure for “short-cutting” probate administration of community and/or quasi-community property that “passes to” (i.e., from decedent, whether by will or intestate succession) or already “belongs to” the surviving spouse or registered domestic partner and separate property that “passes to” the surviving spouse or registered domestic partner: Property qualifying for the “set-aside” may be “determined” (in the case of property passing to the survivor) and “confirmed” (in the case of an interest in community or quasi-community property already belonging to the survivor) to the surviving spouse/domestic partner without probate delay – i.e., no formal administration is necessary.
Technically, under the Probate Code, a decedent's property that passes by will or intestacy to the surviving spouse does so without any court proceedings. The Probate Code procedure simply provides a formal judicial determination (and order) that such property has in fact passed to the surviving spouse. In the case of community and/or quasi-community property interests already belonging to the surviving spouse, the procedure “confirms” such ownership.
The set-aside procedure is optional. Even so, it may be necessary (and desirable) for purposes of clearing “marketable” title, clarifying which property is subject to administration when only part of the estate requires administration, and determining the value of property in order to establish the extent of the surviving spouse's liability to creditors. Accordingly, in most cases, spouses qualifying for the set-aside will decide to obtain a formal “spousal property order.”
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