Whether or not you have to do probate of your late spouse’s estate will depend on how the title to your spouse’s property was held. If you and your spouse put all your property into a trust, then you won’t have to do probate. But, some form of trust administration will probably be necessary. If you and your spouse held all your property as joint tenants, then no probate is necessary.
When is Probate Necessary?
If this were a second marriage. It will also be necessary if there was a prenuptial agreement that kept their spouse’s property as their separate property. Probate may also be necessary if your spouse held a deferred compensation plan. This can include (e.g., a 401(k) plan) or an IRA. However, it will only be necessary if they did not designate a beneficiary. If your spouse had a life insurance policy without a designated beneficiary, then you will need to do probate. The reason for this is that deferred compensation plans, IRAs, and life insurance policies default to a person’s estate if they don’t name someone (i.e., designate a beneficiary) to inherit the deferred compensation plan, IRA, or life insurance policy.
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