Protecting Your Legacy

What goes through probate if my spouse passes away?

| Sep 13, 2022 | Probate & Estate Administration |

When you get married, you agree to share your entire life with someone else. They benefit from your financial resources and from your income. Both of you may be responsible for one another’s debts, and you may share ownership of your biggest assets.

If your spouse dies before you, you will typically be in a strong position to claim a significant inheritance. However, there can be delays between when your spouse dies and when you gain access to or control over certain property because it must first go through probate court.

Assets that go through probate court are potentially at risk due to credit or claims and Medicaid estate recovery efforts. What assets go through the probate courts when your spouse dies?

Your spouse’s separate property will go through probate

The estate of an individual largely consists of the property in their name at the time of their death. The debts that they owe also pass to the estate. Some property, like assets that your spouse owned before they married you or that they set aside as separate in a marital agreement, will be solely in their name and therefore subject to probate proceedings.

However, you and your spouse can plan to significantly reduce which assets must pass through probate to transfer to the surviving spouse. Moving them to a trust can work. You can execute a transfer on death deed for your real estate. You can also create transfer on death designations for financial accounts and other valuable resources.

Any property that is solely owned by your ex and does not already have documents in place to transfer to you or a trust at the time of their death will likely be subject to probate proceedings.

What if there isn’t an estate plan?

One of the most difficult possible scenarios for an individual who just lost a spouse is a situation where there is no estate plan on record. Without a will or transfer on death documents, a significant portion of what your spouse owned may have to go through probate court before you become the owner of that property.

It is only through proper planning both when acquiring new assets and when reviewing your estate documents, that you and your spouse can prevent probate delays and complications from affecting one another if either of you dies.

Navigating probate can be a challenging process. Even when there aren’t significant creditor claims or other complications that will affect your spouse’s estate, simply waiting for adjudication in the probate courts can take months. During that time, you may struggle to meet your financial obligations or may recognize that some of your valuable assets are at risk of losing value.

Connecting with the right support during probate proceedings will decrease the likelihood of frustrating and expensive delays in the transfer of property after your spouse dies.