Does a Surviving Spouse Need Probate?

Executive Summary

• Probate is the process of distributing estate assets to an estate’s beneficiaries or legal heirs either in line with the terms laid out in a will or based upon state intestacy laws.
• Whether a surviving spouse needs probate depends on several circumstances, including the size of the estate and whether a decedent left an estate plan, such as a trust. 
• Surviving spouses have unique rights to their deceased loved one’s assets based on state law.
• If you are a surviving spouse and unsure what share of an inheritance you are entitled to, then you should consult a probate and estate administration attorney.

Introduction

If your spouse has recently passed away, you may be wondering if you need to go through probate in order to inherit your deceased spouse’s property. The answer to this question depends on how your spouse’s property was titled and the value of your spouse’s solely-owned assets.

For example, if you and your spouse shared bank accounts and considerable assets, then you may automatically own these assets and be able to avoid probate altogether. However, if your spouse owned considerable assets prior to your marriage, probate may be necessary for determining how to distribute them.

Ultimately, the process will all depend on a variety of circumstances, like whether your deceased loved one left an estate plan or the size of the estate. This guide will outline what to expect when pursuing probate for a surviving spouse. 

What Is Probate and Why Is It Necessary?

Probate is the process of administering an estate and distributing assets to beneficiaries according to a will, if there is one, or state intestacy law if there is not. During probate, a personal representative of the estate will distribute assets to the named or legally recognized beneficiaries.

Probate is necessary for ensuring that all of a deceased person’s assets are distributed to the rightful beneficiaries with ownership legally transferred. Failing to file probate can also leave assets vulnerable to theft and investment losses if they are not transferred to the appropriate legal owner. Ultimately, probate will ensure that a decedent’s assets are not left in limbo.

When Is Probate Necessary? 

Whether probate is necessary depends largely on state law, the size of the estate, and whether a decedent left a will or trust. Probate is often necessary when an individual does not leave a trust or leaves behind assets that are unclear on who to distribute them to. However, it often boils down to the state laws. 

For example, in California, probate is required when an estate exceeds a value of $184,500. Meanwhile, in Texas, probate is required when an estate exceeds a value of $75,000. In both states, these thresholds apply whether a deceased individual had a will or not. 

Other factors that influence whether probate is necessary include: 

• Whether estate assets are held solely in the deceased’s name – When assets are held in the deceased’s name alone, probate is more likely, as there is likely no clear heir upon their death, and it will be up to the probate court to decide based on a will or state intestacy law.
• Joint ownership and right of survivorship – If assets are owned jointly by both spouses, then the surviving spouse will maintain ownership upon their loved one’s death, eliminating the need for probate to determine which beneficiaries have a right to these assets.
• Community property laws – Community property laws state that any property obtained during the course of marriage belongs to both spouses equally. If an individual dies only owning community property, probate may not be necessary for transferring these assets. 
• Trusts – Assets held in trust will pass according to the terms of the trust and can be distributed from the trustee to the trust beneficiaries without court involvement, as long as there are no disputes or issues with respect to the validity or management of the trust. 

If there is no ambiguity regarding who will receive what due to the above circumstances, then you will most likely be able to avoid probate. For example, in cases where it is clear that all assets should be distributed to the surviving spouse because they were all owned jointly, probate may not be necessary. 

Are All of My Spouse’s Assets Subject to Probate?

The first question is whether your spouse’s held assets are subject to probate administration in the first place. Some property is not required to go through the probate process based on how it is titled.

Common examples of non-probate assets include:

1. Property held in trust.
2. Jointly-owned assets with a right of survivorship, such as bank accounts and real estate. 
3. Payable-on-death (“POD”) or transferable-on-death (“TOD”) accounts with designated beneficiaries, such as retirement accounts or savings accounts.
4. Proceeds from life insurance policies with designated beneficiaries.

Probate Legal Requirements

In California, a personal representative of the estate should initiate probate proceedings as practicable after learning of the decedent’s death. Unjustified delay in initiating the probate process may be seen as a waiver by the proposed administrator of their right to appointment. In Texas, the grace period is higher, as an application for probate must be filed within four years of the decedent’s death. 

From there, the process for initiating and completing probate is relatively similar in each state. However, the process will look slightly different depending on whether the deceased left a will. 

 To initiate the probate process, you should take the following steps: 

• Gather any estate planning documents left by the decedent, such as a will.
• Petition the court to open the probate process with the completed DE-111 petition for probate form (in California), any existing will, and the death certificate.
• Notify all beneficiaries, legally recognized heirs, creditors, and interested parties of the opening of probate. 
• Nominate an executor for the estate to be approved by the court.

Once these steps are complete, the estate representative will distribute assets to the correct beneficiaries. If there is a will, they will distribute assets to beneficiaries named in the will. If there is no will, they will be distributed according to inheritance priority in state law. 

Handling these responsibilities on your own can be difficult. If you are a spouse tasked with overseeing the probate process, consider consulting a probate administration attorney to help you navigate it—an attorney may be able to support you in administering the estate or helping you find an executor to oversee the process. 

Common Scenarios and Questions Surrounding Probate

Because probate can depend largely on the case, there are a few common scenarios that can arise about the necessity of probate and how to navigate it. The following are some of the most frequently asked questions regarding probate. 

“My Husband Died, Do I Need Probate?”

Whether you need probate will depend on a variety of circumstances, like if your husband left a will, created a trust, or shared joint assets with you. Probate is often needed if there is ambiguity around who assets should be transferred to upon one’s death.

You will need probate in the following circumstances: 

• Your husband died and left behind assets that are not jointly owned. 
• Your husband had significant amounts of separate property not acquired during marriage.
• Your husband had an estate valued over your state’s threshold for requiring probate.

“Does a Surviving Spouse Always Need Probate?”

No, a surviving spouse does not always need probate. In cases where the assets have a clear owner upon the deceased’s death, you will likely not need probate.

In California or Texas, you will typically not need probate when:

• All assets are jointly owned by the two spouses
• All assets are considered community property, belonging to both spouses equally 
• The deceased’s assets are held in a trust to be distributed by a trustee
• The estate is below the state threshold for probate, and there is a will specifying who should receive assets. 

“Do You Need Probate If Everything is in Joint Names?”

If you and your spouse jointly owned all assets, you do not need probate. These assets will automatically transfer over to the surviving spouse. For example, if a married couple held a joint bank account, owned a house, and bought a car that all shared their names, these assets will bypass probate and be considered as property of the surviving spouse. 

In community property states like California and Texas, even assets that are not in joint names may be automatically transferred over to the surviving spouse. Any assets that were acquired during the course of the marriage are considered community property and the surviving spouse has a right to maintain that property. 

Does a Surviving Spouse Inherit Everything?

In California and Texas, a surviving spouse does not automatically inherit everything from their deceased partner. However, it is certainly possible that a surviving spouse will inherit everything, and in many cases, they do. The portion of an estate that a surviving spouse receives depends both on the beneficiaries named by the decedent and on state intestacy laws. 

Your spouse’s non-probate assets will be passed as follows:

• Trust property will be distributed to named beneficiaries according to the terms of the trust instrument. 
• Jointly-owned assets will automatically be inherited by the surviving joint owners, provided a right of survivorship exists. 
• Funds from COD and COD accounts and life insurance proceeds will be distributed to the designated beneficiary, provided one has been named. 

However, keep in mind that if you are not the beneficiary or joint owner of non-probate assets that your spouse obtained during your marriage, California’s community property laws may entitle you to inherit despite the beneficiary designation and/or the co-owner’s right to survivorship. 

When it comes to probate assets, what you will inherit depends on whether your spouse had a will or trust, whether you and your spouse signed a prenuptial or post-nuptial agreement, and whether the property was acquired during or before your marriage.

What Is a Surviving Spouse Entitled To?

A surviving spouse is at least entitled to receive one-half of the marriage’s “community property.” However, they often receive considerably more based on the terms of their spouse’s will or state intestacy law. 

Because California and Texas are community property states, the law states that all the assets you or your spouse acquire during your marriage are community property, no matter how they are titled. Except in the case of a pre-nuptial or post-nuptial agreement that states otherwise, the surviving spouse is entitled to at least one-half of the community property when one spouse passes away since each spouse owns one-half of all property acquired during the marriage, regardless of which spouse purchased it. 

If your spouse leaves behind a valid will, their probate assets will be distributed according to the wishes outlined in the document, subject to the community property guidelines discussed above. If there is no will, or the will is considered invalid, the state’s intestate succession laws will determine how the assets are divided. 

Under California’s intestate succession laws, which are found in California Probate Code §§6400-6455, a surviving spouse will inherit everything if their deceased spouse has no surviving children, parents, siblings, nieces, or nephews. Texas follows similar rules—if a deceased spouse has no children, then the surviving spouse will inherit all of the deceased’s property.

However, in both states, if any of these family members are still alive, the surviving spouse will receive all community property and a portion of the deceased spouse’s separate property. The other heirs will also inherit a share of the deceased spouse’s non-community assets.

What Happens If You Don’t Probate a Will?

If your spouse dies and you don’t probate their will, it can create serious issues. When you fail to probate a will, the deceased person’s probate assets cannot be legally transferred to their beneficiaries. Instead, any property that is solely titled to your spouse will remain in their name and not yours, including vehicles and real estate. 

This means you won’t be able to sell, mortgage, or rent your spouse’s property. You also won’t be able to renew the registration for any vehicles that are titled to your spouse, which can lead to legal trouble if you are driving one of these vehicles.

However, there are some alternative options that can be used as a substitute for going through probate while still protecting you legally:

• If a spouse establishes a trust for administering their assets before their passing, then these assets will be distributed to beneficiaries by a trustee according to the terms laid out in the trust.
• A spouse can establish a Transfer on Death (TOD) deed before their passing to specify who should inherit the deed of the property upon their death. 
• For estates below the state law threshold and with an established will, you can often bypass probate by having a small estate administration hearing to oversee the transfer of assets.

If your spouse has passed away and you are wondering if probate is necessary for you to inherit their property, the best thing to do is consult a probate litigation lawyer. A qualified attorney can help you determine if probate is necessary in your case and offer advice on how to proceed in the most prudent manner possible. 

What Happens if a Spouse Dies Without a Will?

If there is no will, then the spouse’s assets will go through the process of intestate succession. During this process, the court will appoint an executor to manage the responsibilities of the estate and distribute estate assets in line with state intestacy laws.

Then, the executor will begin the process of distributing assets to heirs in order of inheritance priority. If a spouse dies without a will in California or Texas, then the spouse will receive all community property and a portion of any separate property. Any jointly held assets owned by both spouses and with both their names attributed to them will transfer over to the surviving spouse.

Is the Surviving Spouse Automatically the Executor? 

A surviving spouse is not automatically appointed as the executor of the estate, but there are some situations where a spouse may be appointed as executor. For example, if there is a will, then the executor will be the individual listed in the will. In some cases, the decedent may have named their spouse as the executor. 

If there is not a will, then the court will appoint an executor to oversee the management of the estate and the distribution of assets. The court may appoint the closest family member to administer the estate—in many cases, this can end up being the spouse. However, in any case, a surviving spouse is not required to serve if they consider serving as the executor to be overwhelming or impossible.

A spouse can decide to refuse the appointment and pave the way for a different executor to be appointed. Family members can choose to nominate a public administrator with more experience and capacity to oversee, manage, and administer the estate. 

Take Control of Your Probate Journey with RMO 

A surviving spouse does not always need to go through probate to receive their rightful share of their loved one’s assets. Factors like joint ownership of assets, community property laws, and legal ownership of assets can all influence whether probate is necessary. If you do need to go through probate, the support and guidance of an attorney can make all the difference.

Our skilled estate and probate administration attorneys here at RMO have decades of experience in guiding individuals through probate. If you are a surviving spouse, we will help you understand your options and build a winning strategy to secure your access to your rightful share of your loved one’s assets..

Schedule a consultation with our attorneys here at RMO to learn more about how we can support you.