Is Probate Required If There Is a Surviving Spouse?

A common misconception is that you do not have to probate a will when your spouse dies.

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Probate surviving spouse
Estate planning is a critical part of the retirement planning process. As we kick off the new year, this is a perfect time to ensure that your plan is up to date.
Things change over time. That includes our lives, our family, and even the laws that apply to estates. This means the wills, trusts, and other estate documents that protect our families and secure our legacies may need to change, too.
With that in mind, we’re thrilled to have Keith McManus, attorney at McManus Estate Planning, back on the podcast. In our conversation, we discussed the downside of not reviewing and updating your estate plan, different ways to protect your biggest asset such as the family home, and the pros and cons of life estates and much more.
In this podcast discussion, you’ll learn: 
  • Reasons why a “set it and forget it” strategy can put your estate at risk.
  • How to take advantage of incredible opportunities before the Tax Cuts and Jobs Act sunsets in 2025.
  • Why you may want to prepare estate plans to protect young adult children, even if they haven’t accumulated much wealth yet.
  • What it means to create a life estate–and the potential risks and benefits of this approach to retirement.
  • Why there’s no such thing as a cure-all trust–and how this makes estate planning more important than ever.
  • Why you never want to rely on a will as the backbone of your estate plan.

There is often confusion as to the best course of action for a surviving spouse when they have suffered the loss of their spouse.? For planning purposes it would be ideal if assets had been properly funded to a Trust prior to either spouse’s death.? However, when that is not the case then probate may be required.? Probate, also called ?estate administration,? is the management and final settlement of a deceased person?s estate. It is conducted by an executor, also known as a personal representative, who is nominated in the will and approved by the court. Estate administration needs to be done when there are assets subject to probate, regardless of whether there is a will, says the article ?Probating your spouse?s will? from The Huntsville Item.

A surviving spouse often looks for resolution and certainty when settling the financial and legal affairs of their deceased loved one.? Probate is the formal process of administering a person?s estate. In the absence of a will, probate also establishes heirship.? In Massachusetts, the probate court process is of an indeterminate length.? Sometimes it is relatively quick, such as for an informal probate proceeding and other times with formal probate court proceedings it may be lengthy, complex and expensive. The complexity depends upon the size and value of the estate, whether a proper estate plan was prepared by the decedent prior to death and if there are family members or others who might contest the will.? Exploring options to eliminate probate court involvement is a common estate planning goal.? This is usually accomplished by one or more Trusts.

Family dynamics can cause a tremendous amount of complications and delays, especially if the family has blended children from prior marriages or if a child has predeceased their parents.? Having a proper estate plan will be an essential guide to the settlement process for the surviving spouse.??There are some exceptions, when the estate is extremely small and when probate is not required.? Trusts typically avoid probate court administration and assets properly held within trusts may have significant legal benefits over other assets.

If a person owns real estate, they should create an estate plan to ensure that their property can be successfully transferred to heirs with no probate necessary. When there is no estate plan, heirs find out how big a problem this can be when someone decides they want to sell the property or divide it up among family members.? Problems also arise when the family finds that they must pay taxes on the property or that there are expenses that must be paid to maintain the property.? Things can become complicated quickly, when there is no plan in place.

The law firm of McManus Estate Planning can help the family move through the probate process more efficiently when there is no will. A better situation would be for the family to speak with their parents about having a will and estate plan created before it?s too late.

Reference: The Huntsville Item (Nov. 22, 2020) ?Probating your spouse?s will?