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

By Stephanie Kurose, J.D.

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

By Stephanie Kurose, J.D.

Generally, a person's estate must go through the probate process regardless of whether they had a will and regardless of whether they were married. However, there are certain assets that, even if included in a will, are exempt from the probate process. In addition, the majority of states have expedited probate processes for certain qualified estates. While the general rule requires a will to go through probate, you should be aware of the exceptions that apply for certain assets and estates.

Old man rests head on cane while looking out into distance

Understanding Probate

Probate is the state-level court process of administering and distributing a decedent's estate. Typically, a probate court distributes assets according to a person's last will and testament. However, even if a person dies intestate (without a will), their estate goes through probate and is distributed according to the state's intestate succession laws.

A person's will should designate an executor, or representative, for their estate and describe how to distribute property to their beneficiaries. The probate process ensures that the decedent's assets are collected and inventoried, any final debts are paid, and their remaining assets are distributed according to the terms of the will. The executor carries out the decedent's wishes with oversight from the court.

Estates that Qualify for Expedited Probate

The probate process can often take many months and can be quite expensive, especially if the decedent's estate is large and complex. As a result, many states have created more streamlined processes for smaller, less complicated estates. To qualify for an expedited process, an estate's value generally must fall under a certain dollar amount. In addition, many states also require that each named beneficiary unanimously agree to the expedited process.

In some states, when the surviving spouse is both the executor and the only named beneficiary in the deceased's spouse's will, the surviving spouse may petition the probate court and ask for an expedited probate process. Generally, the surviving spouse must admit the will to the probate court in order to determine its validity. For more information on the requirements of a valid will, utilize an online legal services provider or contact your county clerk's office.

Non-Probate Assets

Some types of assets are exempt from the probate process entirely, even if the decedent mentions them in their will. In such a situation, the probate court oversees the distribution of the decedent's estate minus the exempt assets. Non-probate assets automatically pass directly to the designated beneficiary upon the decedent's death or according to the terms of the governing document.

For example, a payable on death (POD) bank account passes directly to whomever the decedent named as the beneficiary. Similarly, any assets held in living trust pass directly to the beneficiaries according to the trust agreement. Other non-probate assets include:

  • Real property held jointly with rights of survivorship
  • Investment accounts, including stocks, bonds, and mutual funds
  • Life insurance proceeds
  • Retirement accounts

Using a Will as Evidence of Title Transfer

Some states allow the surviving spouse to petition the probate court to use the deceased spouse's will as evidence that certain property now becomes the surviving spouse's property. If the probate court grants the petition, the will and the court order then become official records of transfer.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.