Do You Need Probate When Your Spouse Dies?

23 February 2023
 Categories: Law, Blog


When you experience the death of a spouse, it is often hard to figure out the following steps to take. But one of the questions you must answer is whether or not you will need their estate to go through probate. The need for probate is not always easy to answer because it often depends on what type of assets are left behind and how they are owned. Here is some information that may help you during the process. 

What Is Probate?

Probate is the legal process when a person has assets that need distribution following their death. It is the estate administration performed if a person dies with or without a will. If a will is present, probate verifies and authenticates the will's validity.

If a will is involved, they will typically name an executor, but the court may appoint an administrator if there is no will. This person oversees the process, pays the outstanding debt, and distributes assets. 

Probate transfer ownership of assets from the decedent to the new owners. Probate may be required to transfer a title or deed depending on the asset.

Is Probate Required For Joint Property?

The answer to this question depends on whether you live in one of the nine community property states. If you live in a community property state, there is a greater chance of your spouse's estate needing to go through probate.

The probate requirement in community property states is that you only automatically own 50 percent of the property. Probate is often necessary to determine ownership of the other half of any jointly owned property, along with any personally owned property your spouse leaves behind. But assets that have designated beneficiaries will not have to go through probate. Some of these assets may include the following:

  • Life insurance policies
  • Bank accounts
  • Retirement accounts
  • Real estate with rights of survivorship

If you do not live in a community property state, you will usually inherit your spouse's assets in most states if their will does not designate them by their will to go to others. 

Unfortunately, death can bring about a lot of complex complications that are not always easy to understand. It makes sense to consult a probate attorney following a death. Not only will they be able to give you legal advice on what your specific situation requires, but they will also be able to represent you as needed during any proceedings.