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

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