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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.
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