If Your Spouse Dies With a Will, Does It Need to Be Probated?

by Heather Frances Google

    Your spouse’s estate must generally go through your state’s probate process regardless of whether your spouse had a will. However, some assets, such as life insurance, can be distributed without going through probate at all. Additionally, most states have a simplified or abbreviated version of probate for estates that qualify.

    Probate Basics

    Wills are written directions, usually including the decedent’s nomination for an executor, or representative for the estate, and a description of how the decedent’s property should be distributed. The purpose of probate is to ensure that the decedent’s assets are gathered, his final debts are paid and his remaining assets are distributed according to the terms of his will or, if he had no valid will, according to state law. However, assets that pass by contract or by the terms of a deed are not considered probate assets, so they do not go through probate. For example, if you and your spouse owned property jointly with rights of survivorship, the property passes automatically to you without probate.

    Streamlined Probate

    Full probate administration can be a long, expensive process when the estate is complicated. However, many states offer a streamlined probate process for certain estates. Often, the qualifications are based on the relatively low value of the estate, but some states also incorporate qualifications based on who is named in the will or whether the decedent owned real estate. Generally, even when an estate qualifies for a more streamlined administration, all beneficiaries must agree, and the probate court will still require that the will be admitted.

    Spouse as Sole Beneficiary

    In some states, there is a special probate category for estates where the deceased made a will leaving everything to his surviving spouse and naming his spouse as executor. For example, in North Carolina, the surviving spouse can ask the court to allow a summary version of probate if he is the sole beneficiary of his spouse’s will or if there is no will. Generally, the will must still be admitted to the probate court to allow the court to determine whether it is valid.

    Transfer of Title

    Some states, such as Texas, allow a surviving spouse to ask the probate court for permission to use the deceased spouse’s will as documentary evidence that the deceased spouse’s property is now the surviving spouse’s property. In this circumstance, the will must still be submitted to the court. If the court approves the surviving spouse’s petition, the will and the court’s order are used as the official records of transfer.

    About the Author

    Heather Frances has been writing professionally since 2005. Her work has been published in law reviews, local newspapers and online. Frances holds a Bachelor of Arts in social studies education from the University of Wyoming and a Juris Doctor from Baylor University Law School.