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By: Scott Grossman on January 8th, 2018

Does a Surviving Spouse Have to do Probate?

Does a Surviving Spouse Have to do Probate?

This comes up when I get calls from people who say either their mother or their father died and now it’s their spouse (the father or the mother) who has survived.

So let’s go with a stereotype, just to illustrate the point. So let’s say your father has died, it’s your mother who is the survivor, and you’re wondering well, with dad being gone, does mom have to do probate?

Usually, the answer is no.

And the reason the answer is usually no is usually spouses have everything in joint tenancy, or, they may have done their estate planning and put everything in a trust. If they are like most spouses and they have everything in joint tenancy (their house, their bank accounts, their cars- what have you) there’s no need to go ahead and do probate. It’s the survival who is now on title, the survivor owns everything. You don’t need the signature of your deceased parent; so the survivor can carry on just as they did before. They have good title, they have full control, and there is nothing that they need to do.

The exception comes up oftentimes when we have got blended families, and occasionally even in a first marriage when something odd happened with title.

So, what sometimes happens is we will see in a first marriage, we have a spouse, one of whom had just terrible credit, and the other of whom had good credit. So when they purchase the house, it went into the name of just one of them rather than both of them (because of the credit problems). It is a deed recorded by the spouse with bad credit, saying they are giving all of their ownership (usually it’s done through a quick claim deed) to the other spouse. So that the other spouse owns it as their separate property. Yes, you are going to have to do probate.

In a blended family, sometimes the planning that’s done is the same is that spouses will maintain assets in their own names. So it’s clear when they die that the other spouse, at least in theory, isn’t going to get it. Well, that may or may not be the case if mom or dad died and those assets are in their name alone, and there is no trust, yeah, you are going to have to do probate, even if there is a will that says everything goes to my spouse. Well, because it was only in one name, there is going to be a need to do that.

So, when you’ve got this situation most of the time you’re not going to need probate. But, checking on titles to the assets is the key to knowing if you might be in an unusual situation where it is still needed.

If you need to do probate or have questions about completing probate, do not hesitate to contact our office today.