For surviving spouses, the first order of business is usually dealing with any property your spouse held in the deceased person’s name alone. If you’re not sure what you can do on your own and what requires a court proceeding, here’s a quick rundown of how best to handle common steps.
This article provides general information only. Laws change frequently and can be interpreted differently by different people. You should consult an attorney if you have questions about anything in this article.
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Inheritance rights of a surviving spouse
If you’ve been married for a long time, chances are your surviving spouse will inherit some significant assets from you. That’s because many states have laws that give surviving spouses a right to claim a certain percentage of an estate. In California, surviving spouses can claim up to one-half of the community property and all or a portion of the separate property after death.
In situations where the surviving spouse does not get what’s due under state law, there is often a court proceeding called Probate, since it deals with cases in which people have died without leaving a valid will behind.
Determining whether you need probate depends on how much is involved and who owns it. For example, if your surviving spouse inherits stocks or bonds from you, they don’t need probate. You can transfer ownership by preparing a simple form called a “Stock Power” and signing it in front of a witness.
What happens to my spouse’s property when they die?
If your spouse died without leaving a valid will (known as dying “intestate”), or left one that doesn’t address how to deal with his or her property (often called an “invalid” or “improperly drafted” will), you’ll need to petition a court known as the “probate division” of the superior court in your county.
What property am I entitled to right now?
If you live in a community or marital property state, surviving spouses usually have a legal claim to at least half of their deceased spouse’s probate estate, including all assets that would otherwise pass by intestacy laws. In other words, surviving spouses can take any and all inheritances they would be entitled to if their spouse had died without leaving a will. If you don’t want this inheritance for some reason – for example, if it consists only of real estate located hundreds of miles from where you live – you have 30 days after being notified about the inheritance to disclaim it. This means that you’re giving up any future rights to the property. If you don’t, your disclaimer will be considered a gift of your interest in the property and you’ll be responsible for paying any taxes due on its value as of the date of death (again, consult with an attorney).
What if my spouse didn’t leave enough money to pay all their debts?
If there isn’t enough cash left over after paying surviving spouses’ claims to cover all debts, surviving spouses are entitled only to enough cash or property necessary to pay outstanding bills. However, surviving spouses may receive assets specifically set aside for them even if they aren’t enough to pay off surviving spouses’ share of the decedent’s debt.
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What is a probate process?
A probate process is a formal court proceeding by which a deceased person’s will is “proved” or validated. A surviving spouse has no control over the length of time it takes to probate an estate, but they can do things to expedite it, especially if there are surviving children who are not yet legally adults. These include filing all required paperwork in a timely fashion and not challenging the validity of property that will be distributed according to the decedent’s wishes (for example property that passes under intestacy laws).
Can you live in a house during probate?
Yes, you can live in a house that is going through the probate process. The probate process is the legal way to transfer property from a now-deceased landlord to their family members. During the probate process, a will is read and the property and personal belongings are divided to the beneficiaries named, along with other assets, and typically, the surviving spouse will take the entire estate.
What types of property pass without going through probate?
There are some assets that don’t have to go through the usual probate process. For example, life insurance proceeds usually pass directly to the named beneficiaries. Similarly, if the surviving spouse is already named as a beneficiary on some other type other assets (such as retirement accounts like 401(k)s or IRAs), that transfer doesn’t need to go through probate.
Do I need a probate attorney?
Any surviving spouse dealing with the probate process should consult an experienced estate planning attorney from a respectable law firm.
Don’t be surprised if the surviving spouse wants to hire a lawyer that doesn’t specialize in probate law. That’s because probate can be very complicated, and surviving spouses who are going through a particularly complex probate case may find it helpful to have a lawyer on their side who is familiar with other aspects of their lives, such as tax issues or marital property laws and still go to probate court.
In situations where there isn’t much money involved – for example because the surviving spouse’s inheritance from the decedent won’t cover their debts – surviving spouses will often simply hire an inexpensive probate paralegal instead of an attorney. In fact, approximately 80 percent of all surviving spouses dealing with the probate process hire a lawyer.
What is Attorney-Client Relationship?
When you hire an attorney, that person becomes your representative in all matters pertaining to your legal situation. You are now considered the client of your attorney. The attorney-client privilege states that the communications between you and your lawyer are private, except for very limited exceptions. When a client and lawyer talk, it is necessarily secure as it might contain sensitive or confidential information and such things cannot leak out from a confidential relationship as this one.
What is Spousal Immunity?
Spousal immunity involves a couple’s rights – either before or after marriage – in regards to their income and property. For example, surviving spouses may receive all income and property acquired during the time they were married (during good times and bad), even if one spouse brings little or no money into a marriage or has significant debts when entering into it.
What is Sole Ownership?
It is a legal arrangement that gives one person the exclusive right to the possession and use of an item.
In other words, if you have sole ownership of something, no one else can use it without your permission – even if they pay for it. This includes items such as vehicles or real property.
When the sole owner dies but leaves a will, their property goes through what’s called a probate process where a judge validates the will and decides who gets what from the deceased person’s estate after the owner’s death. An experienced estate planning attorney can help you understand how all this works – including whether you should hire an attorney at all – as well as other issues that may come up during the probate process.
What is joint ownership?
Joint ownership means equal ownership; it can be of property or bank accounts. Joint ownership with rights of survivorship means that the surviving owner automatically inherits all joint property the co-owners have when the one owner dies.
What is community property?
Community Property usually refers to couples who are legally married in states where this type of system applies. Community property explains what happens to a couple’s shared income and property when one spouse dies, especially if they didn’t have a will.
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What to do when parent dies without will?
If your parent dies without leaving a will, you may experience significant anxiety trying to figure out how to handle his or her property. To begin with, try to find the original copy of your parent’s will and keep it in a safe place. Then see if there is any family member who can help you locate other important papers (like old tax returns).
Once you have those documents, you will need to determine if the state where your parent lived will probate their estate property or not. If it does, then you’ll need to attend a formal court hearing and make sure all creditors and other interested parties are notified. Even though this can be expensive and time-consuming (it often takes at least nine months), it may be worth hiring an attorney who specializes in probate law.
Less than half of U.S. states use what is called “common law” to handle estates – which means that the deceased’s property would automatically transfer on death, without any kind of legal process unless they agree otherwise before the owner dies or sign a prenuptial agreement waiving their right to take property under these laws.
What is the difference between probate and estate?
Probate and estate are sometimes used as synonyms, but they aren’t exactly the same thing. Probate is the legal process by which the law is transferring property from a deceased owner to their registered domestic partners and heirs according to what’s laid out in a will (if one exists), or according to state law (if there isn’t a will). The “estate” of a decedent refers simply to all of his or her assets – meaning everything that belongs to him/her – and also includes debts. It doesn’t matter if those assets need to go through probate or not; creditors can still take them and sell them off after death even if there isn’t anything left for family members after debts are paid.
Death of a spouse checklist
If your partner dies, the deceased’s spouse will need to fill out the decedent’s final tax return, claim any income that might be owed, and deal with the deceased’s assets. Here are some steps you’ll want to take:
1. Stop payment on any outstanding checks
Your first step should be stopping payments or withdrawals related to your spouse’s accounts or cards (such as insurance policies and other automated technology). Once all checks have stopped coming in, it may be easier for you to take care of any other financial matters together.
2. Check social security benefits
The SSA will issue a benefit ($255) to family members who are eligible to receive the benefits of the deceased person. If your spouse didn’t claim this benefit, check on their application and find out if they filed recently enough for you to file a late application so that you can get this payment. Otherwise, you’ll have to wait until the next time Social Security accepts applications for this benefit.
3. Contact any beneficiaries on retirement or life insurance accounts
Any policies that list a beneficiary should be turned over as soon as possible – especially those with cash values. In most states, there’s a short period of time (often just 30 days) during which an insurance company must turn over money from your dead spouse’s accounts directly to family members or other named beneficiaries.
If your spouse has changed their will since they purchased the life insurance policy, there may be troublesome legal issues that need to be resolved before you can claim the money.
4. Contact your spouse’s creditors
Don’t wait until all bills are due because many lenders will stop accepting partial payments when it becomes clear that no one is coming in with another check. To avoid any confusion over how much is owed, contact the creditor directly and tell them about your spouse’s death so that you can work out an arrangement for paying off his or her outstanding debts.
5. Find out if there are competing claims on your spouse’s estate
Say your father dies without leaving a will and he leaves behind four adult children who each have minor children. If they are unable to agree on how their father’s estate assets should be divided, the law requires that an administrator or executor of his estate be appointed by a court so that matters can be handled in an impartial fashion.
If your spouse owes money to someone else (such as a credit card company or hospital), then you need to find out if this person files some kind of claim against your spouse’s estate. If so, you may pay off these debts before claiming any remaining estate assets for yourself and your family members.
6. Closing bank account after death
It may seem obvious, but it is important to get all bank statements and checkbooks after the funeral director has left if possible so that you know exactly how much money is available. If your spouse had a 401(k), you should find out if there are any outstanding loans, any outstanding hardship withdrawals that may have been made, and if so – whether or not these debts can be paid off by the executor of your spouse’s will.
7. Subtract your spouse’s funeral expenses from the estate
It may seem harsh to do this right away before going through all of the work involved with settling a deceased person’s assets, but it needs to be done as part of their final tax return. You need to know exactly how much is left over for family members after all other financial obligations have been met.
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