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The Elder & Disability Law Firm, APC July 26, 2022

When a loved one passes away in California, a lot of questions tend to arise. What happens with their property? How will the funeral arrangements go? How to cope with the death? One question that can be overwhelming is what will happen with their debts. If your loved one has passed, their estate – consisting of their property, cash, investments, and heirlooms – generally goes through the probate process, whether they have a will or not. The probate process helps figure out some of those questions that you may have. It distributes everything between heirs and creditors with debt claims. A few exceptions exist for jointly held property, retirement accounts, and insurance policies with named beneficiaries, which transfer out of probate court.

However, one of the primary purposes of probate proceedings is to ensure that the deceased’s debts are honored. Since California is a community property state, debts acquired during a marriage in either spouse’s name become the liability of the surviving spouse in the event of the other’s death. Fortunately, there are exceptions and even a statute of limitations.

If your spouse has recently passed away and you face the prospect of dealing with probate proceedings and the claims of creditors in or around Redlands, California, contact The Elder & Disability Law Firm, APC. 

We will counsel and guide you through the probate process, answer your questions, and explain your legal options to you. We can also work directly with the executor of the estate to assure everything goes smoothly.

The Elder & Disability Law Firm, APC serves clients not only in Redlands, California, but in the surrounding communities, including Rancho Cucamonga, Riverside, and Palm Springs.


Every state has a system of probate proceedings to settle the estates of the deceased in regards to whom among the heirs receive what and how any outstanding debt obligations are resolved.

In California, an executor or administrator of the state will be appointed by the court handling the probate. If the individual dies with a last will and testament in place, then the personal representative named in that document will be appointed executor. If the person dies intestate – without a will – the court will name an executor, or administrator, usually from among family members.

The first step in the probate process is for the executor to notify both heirs and creditors that the estate is being administered through the court system following the death of the individual. Creditors then have a four-month window in which to file their claims.

The executor must then collect all assets and create a bank account to place cash assets. Other assets may need to be appraised and perhaps sold to raise cash to cover the debts or to be used in accordance with the directions stated in the deceased’s will.


What happens if these assets are not enough to cover the deceased’s debt obligations? Here is where California’s community property standard comes into focus. All debts acquired during the marriage, in either partner’s name, become the liability of the surviving spouse should the other spouse pass away.

California law states that any debt can be enforced against the surviving spouse the same way it would have been executed against the deceased spouse.

There are exceptions and limitations, however. First, if the spouse accumulated the debts prior to marriage – such as through student loans or spousal/child support – then the surviving spouse is not liable. Also, the surviving spouse’s separate property – assets acquired before marriage or through a gift or inheritance during a marriage – cannot be tapped.

Another exception applies if the couple entered into a prenuptial agreement, which stipulates that no property, or only certain property, will be community property.

Finally, there is a one-year statute of limitations. The statute of limitations for collecting debts in California is four years, but after the debtor passes away, there is a one-year limitation for collection efforts. This limitation will even apply if the deceased ran up massive medical debts before passing away. The general four-year statute for collecting debts is overridden by the one-year limitation.


The death of a loved one is always an emotional and trying time. The last thing you want to deal with are creditors hounding you for the debts of your spouse. Fortunately, the probate process shields you from harassing phone calls, but those debts can weigh against the assets the two of you have accumulated.

The attorneys at The Elder & Disability Law Firm, APC will work with you personally and with compassion to navigate the probate process and protect your assets and inheritance. Reach out to us immediately when you’re facing probate court proceedings in or around Redlands, California, including the nearby communities of Rancho Cucamonga, Palm Springs, and Riverside.