Probate sounds intimidating and difficult to many people, but it is often required, even when you leave everything to your spouse. A will can be very helpful to your family to let them know what you wanted to happen with your property and can even appoint guardians for your minor children, but the will must be probated to be effective. However, there are also several ways to leave assets to your spouse outside the probate process.
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Purposes of a Will
A will directs the transfer of your property after you die, though it can’t actually accomplish that transfer until it is properly administered through the probate process. Your will can also nominate guardians for your minor children if you and your spouse die together. However, your nomination of a guardian in your will is not binding and will often require the probate court to approve the nomination before the person you named actually becomes your child’s legal guardian. Without a will, the guardianship process may become complicated and may require a special separate proceeding.
Probate is the legal process by which ownership of property is transferred after a person’s death. Probate involves gathering your assets, paying your last debts and then distributing your remaining assets according to the terms of your will or, if you have no will, according to your state’s laws. Without probate, a will is just a piece of paper. Only after the will is properly admitted to probate can a court determine if the will is valid, and only then can your executor administer your estate.
If your will is not probated, other heirs could force the estate to be settled as if there is no will. In this case, your state’s laws known as intestate succession would determine who receives shares of your estate. Often, this will mean that your spouse receives only part of your estate rather than the entire estate as you had intended. If no will is probated, many states’ laws say that your spouse receives only part of your estate and the remainder is split among your children. Your spouse may receive even less if you have children from a previous relationship.
The probate process is only required for probate assets, but some of your assets may be nonprobate assets. Nonprobate assets are those that are transferred by a survivorship mechanism or contract that is triggered by your death. For example, you and your spouse may own your home as joint tenants with rights of survivorship. If so, your home will pass automatically to your spouse when you die. Life insurance, a transfer-on-death bank account and retirement benefits are also frequently transferred as nonprobate assets because they are distributed directly to the beneficiaries you named. If all of your assets are nonprobate assets, probate and a will might not be necessary unless you need to consider guardianship of your minor children.