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FAQs / Probate Process / My spouse died and left a will leaving his assets to me and my children. Do we have to probate the will?

My spouse died and left a will leaving his assets to me and my children. Do we have to probate the will?

The short answer to the question is YES, but it also depends on how the decedent’s assets were titled at the time of death. Just because the surviving spouse and/or children are the only beneficiaries, doesn’t automatically mean you can skip the probate process. The existence of a Last Will and Testament also does not allow you to skip the probate process. Probate is required whenever someone dies and there are assets in the decedent’s sole name with no beneficiary designations. In response to the question posed above, if the decedent’s assets were all held jointly with the spouse, then there would be no reason for a probate because the assets would pass to the surviving spouse via rights of survivorship, outside of the probate process. For example, if the title of the house is in both your name and your spouse’s name, the title of the house would automatically pass to you once your spouse dies.

Some assets bypass the probate process, even if the decedent mentions them in the Will. These assets pass to the surviving joint owner, or designated beneficiary upon the decedent’s death under the terms of the document that governs them. For example, a bank account with a payment on death (POD) feature does not go through the probate process, but passes directly to the person the decedent named as a beneficiary in the bank documents, often executed when establishing the account. Other examples of assets that typically pass to the beneficiaries according to the terms of their own documentation rather than the terms of the decedent’s will include investment accounts, retirement accounts, and life insurance proceeds.

If you are not sure whether a probate is required, you should consult an experienced probate attorney. It is a good rule of thumb that an original Last Will & Testament should always be deposited with the Clerk of Court in the county where the decedent resided at the time of death, whether you think a probate is necessary or not. If assets are discovered many months or years after death and a probate is necessary, it will be easier to initiate the process if the original Will is filed with the clerk’s office.

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