Chapter 3. Setting Aside Probate Homestead of California Probate Code >> Division 6. >> Part 3. >> Chapter 3.

Upon the filing of the inventory or at any subsequent time during the administration of the estate, the court in its discretion may on petition therefor select and set apart one probate homestead in the manner provided in this chapter.

The probate homestead shall be set apart for the use of one or more of the following persons:
  (a) The surviving spouse.
  (b) The minor children of the decedent.

(a) The probate homestead shall be selected out of the following property, giving first preference to the community and quasi-community property of, or property owned in common by, the decedent and the person entitled to have the homestead set apart:
  (1) If the homestead is set apart for the use of the surviving spouse or for the use of the surviving spouse and minor children, out of community property or quasi-community property.
  (2) If the homestead is set apart for the use of the surviving spouse or for the use of the minor children or for the use of the surviving spouse and minor children, out of property owned in common by the decedent and the persons entitled to have the homestead set apart, or out of the separate property of the decedent or, if the decedent was not married at the time of death, out of property owned by the decedent.
  (b) The probate homestead shall not be selected out of property the right to possession of which is vested in a third person unless the third person consents thereto. As used in this subdivision, "third person" means a person whose right to possession of the property (1) existed at the time of the death of the decedent or came into existence upon the death of the decedent and (2) was not created by testate or intestate succession from the decedent.

(a) In selecting and setting apart the probate homestead, the court shall consider the needs of the surviving spouse and minor children, the liens and encumbrances on the property, the claims of creditors, the needs of the heirs or devisees of the decedent, and the intent of the decedent with respect to the property in the estate and the estate plan of the decedent as expressed in inter vivos and testamentary transfers or by other means.
  (b) The court, in light of subdivision (a) and other relevant considerations as determined by the court in its discretion, shall:
  (1) Select as a probate homestead the most appropriate property available that is suitable for that use, including in addition to the dwelling itself such adjoining property as appears reasonable.
  (2) Set the probate homestead so selected apart for such a term and upon such conditions (including, but not limited to, assignment by the homestead recipient of other property to the heirs or devisees of the property set apart as a homestead) as appear proper.

The property set apart as a probate homestead shall be set apart only for a limited period, to be designated in the order, and in no case beyond the lifetime of the surviving spouse, or, as to a child, beyond its minority. Subject to the probate homestead right, the property of the decedent remains subject to administration including testate and intestate succession. The rights of the parties during the period for which the probate homestead is set apart are governed, to the extent applicable, by the Legal Estates Principal and Income Law, Chapter 2.6 (commencing with Section 731) of Title 2 of Part 1 of Division 2 of the Civil Code.

(a) A petition to select and set apart a probate homestead may be filed by any interested person.
  (b) Notice of the hearing on the petition shall be given as provided in Section 1220 to all of the following persons:
  (1) Each person listed in Section 1220.
  (2) Each known heir whose interest in the estate would be affected by the petition.
  (3) Each known devisee whose interest in the estate would be affected by the petition.

(a) Property of the decedent set apart as a probate homestead is liable for claims against the estate of the decedent, subject to the probate homestead right. The probate homestead right in property of the decedent is liable for claims that are secured by liens and encumbrances on the property at the time of the decedent's death but is exempt to the extent of the homestead exemption as to any claim that would have been subject to a homestead exemption at the time of the decedent's death under Article 4 (commencing with Section 704.710) of Chapter 4 of Division 2 of Title 9 of Part 2 of the Code of Civil Procedure.
  (b) The probate homestead right in the property of the decedent is not liable for claims against the person for whose use the probate homestead is set apart.
  (c) Property of the decedent set apart as a probate homestead is liable for claims against the testate or intestate successors of the decedent or other successors to the property after administration, subject to the probate homestead right.

(a) The court may by order modify the term or conditions of the probate homestead right or terminate the probate homestead right at any time prior to entry of an order for final distribution of the decedent's estate if in the court's discretion to do so appears appropriate under the circumstances of the case.
  (b) A petition for an order under this section may be filed by any of the following:
  (1) The person for whose use the probate homestead is set apart.
  (2) The testate or intestate successors of the decedent or other successors to the property set apart as a probate homestead.
  (3) Persons having claims secured by liens or encumbrances on the property set apart as a probate homestead.
  (c) Notice of the hearing on the petition shall be given to all the persons listed in subdivision (b) as provided in Section 1220.

Nothing in this chapter terminates or otherwise affects a declaration of homestead by, or for the benefit of, a surviving spouse or minor child of the decedent with respect to the community, quasi-community, or common interest of the surviving spouse or minor child in property in the decedent's estate. This section is declaratory of, and does not constitute a change in, existing law.