Q: When my husband dies do our assets need to go through probate?

A: As with so many answers about estate planning issues, the answer is "it depends", and how to proceed depends on you and your spouse's wishes. It is very possible to avoid probate or be able to use a much simplified process of probate but it generally depends on what those assets are, how they are owned, and whether there are valid beneficiary designations in place for those assets that permit them. "Joint ownership" can mean "joint tenants with right of survivorship" (JTWOS) or "tenants in common" (TIC). JTWOS titling allows the asset to pass as a matter of law at the passing of the first spouse/owner and avoids probate while TIC likely would not. As one of the first steps of a solid estate plan, you should list all of your assets, determine specifically how they are owned, and determine if there is an option for a designated beneficiary. After you have all of that in front of you, you can analyze each asset and determine how that asset can pass according to your wishes in the most straightforward manner. Be aware that just because both of your names are on a document and you are married does not necessarily mean it is owned JTWOS: make sure! You may consider consulting an estate planning attorney to get a will (or trust) in place because there could be issues for any assets that do not transfer as a matter or law or through a designated beneficiary in the event that your husband passes first; without a will, state law will control how the probate estate is distributed which may not be in the way you or your husband had in mind. There are lots of options for you but the key is doing something about it before someone passes because at that point the statutes take over and your choices are limited.

A: Hello,

The answer to this depends on the type of assets you are referring to. When someone dies, their assets are considered either "probate" or "non-probate" assets. A classic example of a non-probate asset is a life insurance policy. An example of a probate asset would be something like a vehicle. Probate assets typically must go through the probate process (though this does not mean they will be tied up for long periods of time. This only means they typically need a formal proceeding). Non-probate assets "pass" right through probate and go directly to the intended beneficiary as is the case with life insurance.

Since I do not know exactly what kinds of assets you are referring to, I can't give a very clear answer. However, if you hold a joint bank account together, it is likely that the account will automatically go to you as you will become the sole legal owner. You may want to give your bank a copy of the death certificate so that his name is no longer on the account, though.

You did say that everything is jointly owned. This suggests that the corporate entities that are in charge of those assets would only need a death certificate, but that is not a guarantee.

I hope this helps. If you'd like to talk about specific assets and planning, you may contact our firm.

A: As with so many answers about estate planning issues, the answer is "it depends", and how to proceed depends on you and your spouse's wishes. It is very possible to avoid probate or be able to use a much simplified process of probate but it generally depends on what those assets are, how they are owned, and whether there are valid beneficiary designations in place for those assets that permit them. "Joint ownership" can mean "joint tenants with right of survivorship" (JTWOS) or "tenants in common" (TIC). JTWOS titling allows the asset to pass as a matter of law at the passing of the first spouse/owner and avoids probate while TIC likely would not. As one of the first steps of a solid estate plan, you should list all of your assets, determine specifically how they are owned, and determine if there is an option for a designated beneficiary. After you have all of that in front of you, you can analyze each asset and determine how that asset can pass according to your wishes in the most straightforward manner. Be aware that just because both of your names are on a ownership document and you are married does not necessarily mean it is owned JTWOS: make sure! You may consider consulting an estate planning attorney to get a will (or trust) in place because there could be issues for any assets that do not transfer as a matter of law or through a designated beneficiary in the event that your husband passes first; without a will, state law will control how the probate estate is distributed which may not be in the way you or your husband had in mind. There are lots of options for you but the key is doing something about it before someone passes because at that point the statutes take over and your choices are limited.