Probate after your Spouse Dies?

by Mark A. Krohn, Esq., Partner
Jacobowitz & Gubits, LLP

Question:
My husband passed away recently. Do I need to go to court for probate proceedings?

Answer:
I frequently receive phone call asking this very same question and the answer is : "It depends".

Let's first look at the more basic question: "What is probate?"
Probate is the process of submitting an individual's Last Will and Testament to the Surrogates Court and asking the judge, among other things, to appoint someone as Executor of the deceased person's estate. The judge will make this appointment only after you have proved that the Will is valid by bringing in witnesses to the signing or submitting affidavits of the witnesses. Only when a Will is proved to be valid to the satisfaction of the judge, will the judge admit the Will to probate and appoint the Executor.

Why is it so important to have an Executor appointed?
Without an Executor there is no one who has the ability to transfer the decedent's assets as outlined in the Will. Remember that Powers of Attorney die with you.

To complete the picture, in the event that someone dies without a will, assets will be distributed to his or her heirs according to law. The court proceeding required in such cases is call an "estate administration" and the one appointed to distribute the assets is call the "administrator".

If the Court needs to appoint someone to distribute the assets, isn't Probate or Administration always necessary?
The first question to ask is whether there is any other alternate means of distribution. When one spouse dies, most of the assets are owned jointly with the surviving spouse. Often this means that as soon as one spouse dies the other automatically owns the property one hundred percent. Consider the following:

  • The most prevalent example of this is a joint bank account. No transfer is necessary and, therefore, no court proceedings.
  • Almost all real property (your home, etc.) owned jointly by husband and wife passes automatically as well. In order for such property to fall into this category, look at the deed for the phrases "Tenants by the Entirety", "Husband and Wife" or simply "His Wife" next to your names. Any of these will transfer property directly to the survivor with no new deed required.
  • Any asset that designates a beneficiary, such as life insurance or a retirement fund does not need court proceedings.
  • Motor vehicles can generally be transferred by obtaining the appropriate form from the Department of Motor Vehicles.

What is left? Look for any assets in the deceased spouse's name alone. This most often comes up in the case of shares of stock especially those distributed by an employer. While recent legislation requires that a shareholder be allowed to designate a beneficiary, many have not taken advantage of this provision. Nonetheless, is often possible to transfer stock directly from a corporation without probate. However, these procedures usually are so time consuming that one may well be better off going to court instead.

Finally, bank accounts in the sole name of the decedent under a certain amount may be transferred to the heirs by the use of affidavits. Banks are usually reluctant to volunteer this information so you must be persistent when you ask them if this can be done in your case.

If there are still assets in your deceased spouse's name which cannot be otherwise transferred, probate or administration proceedings are most likely necessary. While these proceedings may be costly and time consuming if the estate is large or contested, many probate or administration proceedings, especially in the hands of a skilled Estate Attorney, can, in fact, be relatively painless.