Does a Widow Need to Probate After Her Spouse's Death?

A woman who's recently lost her husband is faced with many legal and financial issues. One such issue is whether or not she needs to Probate her husband's estate after his death. Here's how you know if you must start a Probate.

When do you need to file a Probate? If there are any assets in your husband's name only, those assets will have to be "probated" before they can be legally transferred into your name.

Here are some examples: if your name is on the asset with your husband, Probate is not necessary. If an asset passes by beneficiary designation, for example a life insurance policy, and at least one of the named beneficiaries is alive, Probate is not necessary. But if your husband holds stock in just his name, a Probate will be necessary.

What is Probate?
Probate is a court procedure that transfers ownership and title of the assets of a deceased person to his or her heirs. It involves filing the Will (if one exists), having the Will accepted by the court, listing the assets and the value of each asset, paying the deceased's debts, and distributing the remaining assets to the persons named in the Will. If there is no will, the assets will be distributed according to the laws of the state in which the probate takes place.

Determine if you have to Probate
Here's how the completed Inventory will tell you if you need to start a probate. You will notice on the Inventory Form that there is a space that asks how each particular asset is titled, i.e. your name; your husband's name; joint names (more than one name); or in the name of your husband's trust or your trust. If there is an asset or assets in your husband's name only, you will have to probate those assets.

Review the column entitled "How Asset is Titled." A probate will be necessary if:
o ANY asset listed on the Inventory is titled in your husband's name only; or
o The beneficiary of your husband's life insurance policy, annuity, retirement plan or IRA is listed as his "Estate"; or
o The primary beneficiary of your husband's life insurance policy, annuity, retirement plan or IRA is deceased and there is no secondary beneficiary named; or
o Both the primary and secondary beneficiaries of your husband's life insurance policy, annuity retirement plan or IRA are deceased.

It does not matter if your husband has a Will, a probate is necessary if any of the above situations exist.

Who Receives Assets if there is a Will?
If your husband left a Will, the assets will be transferred to the person or persons named in his Will. If you are that person the assets will be transferred to your name.

Who Receives Assets if there is no Will?
If your husband died without leaving a Will, the laws of your state will determine who receives his assets. In most states, the surviving spouse receives a portion if not all of the assets. Consult an experienced probate attorney.

Attorney Necessary?
In most states it is possible to probate an estate without an attorney. But if you live in a large metropolitan area with a busy and crowded probate court or if you don't want the frustration and the responsibility of probate, retain an attorney to probate the estate for you. If you decide to retain an attorney, find an experienced probate attorney.

Discuss fees and court costs with the attorney at your first meeting. If you are satisfied with the proposed fees, request that the attorney prepare a written" Fee Agreement" that documents your verbal agreement. You and the attorney should sign two copies of the Fee Agreement with each of you retaining a signed copy.

When to Start Probate
It takes many months to probate an estate; so the sooner you start the sooner you'll be done. Do not ignore the problem if a probate is necessary. If there are assets in your husband's name only, you will not be able to transfer them to your name nor will you be able to sell them without a probate. Act now if you determine that a probate is necessary.


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