Do I Need to File Probate if My Wife Died?

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It's not altogether uncommon for surviving spouses to bypass probate. Probate isn't always necessary, particularly if the estate is relatively uncomplicated or assets are held in such a way as to make probate unncessary. Whether probate can be avoided generally depends on where the married couple resided and how assets were kept.

Although many people dread probate, it's really not so bad. Of course, being able to avoid it is more convenient; however, the process isn't as arduous as it seems. Probate courts merely oversee the settling of a decedent's finances/estate, helping the executor pay bills and distribute assets. Typically, probate courts are most helpful where an estate is very complex, or where the decedent left a will that isn't exactly clear. That said, many surviving spouses get to avoid probate due to the nature of marital assets.

Community Property

In community property states, surviving spouses can likely get out of probating a deceased spouse's estate because the estate is owned jointly. In other words, all property acquired during the course of marriage is seen as community in nature. The only property that isn't jointly owned is anything considered "separate." This is typically property one spouse owned before marriage and any inheritances received. Nine community property states exist, and they are: Washington, Idaho, Texas, California, New Mexico, Wisconsin, Louisiana and Nevada.

Joint Accounts

When spouses hold assets in joint accounts, probating these assets isn't necessary. Joint bank accounts, retirement accounts with a named beneficiary, life insurance policies and trusts all get to bypass probate. Additionally, payable-at-death accounts and joint tenancies with right of survivorship don't have to go through probate.

Last Will

If the deceased spouse left a will, whether it should be probated depends on if the spouses lived in a community property state and the complexity of the estate. Oftentimes, spouses in community property states make what's called "mirror wills." These wills are generally structured so that each spouse leaves their 50 percent share to the other spouse. In the event a deceased spouse left a mirror will in a community property state, the need for probate is highly unlikely.

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