Liccardo

—This in an appeal from an order setting apart a probate homestead pursuant to Probate Code section 6520. 1 For reasons we shall explain, we reverse the order.

*964 Leonard Liccardo, an attorney, died on July 16, 1988, leaving his wife, Kathleen, who was eight months pregnant, and their two minor children. Liccardo also had four children from a previous marriage, all of whom were adults. On September 12, 1988, Kathleen filed a petition for probate of will in the Santa Clara County Probate Court. She was appointed the estate’s personal representative on October 17, 1988.

At the time of his death, Liccardo was being sued by one of his clients, Edmond Mirabito. Mirabito claimed Liccardo swindled him and certain members of his family out of over $2.5 million. On November 30, 1988, Mirabito filed a creditor’s claim against the estate based on the pending lawsuit. The claim was rejected.

Shortly before his death, Liccardo deeded his home, which was his sole and separate property, to himself and his wife as community property. After his death, Kathleen petitioned the probate court for a community property spousal set-aside order, determining property passing to the surviving…