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Do I Have to Go Through Probate If My Spouse Dies?

Losing a spouse is one of the most emotionally draining and stressful experiences there is. Often, this stress is compounded by financial burdens, especially if the deceased was the primary earner, or if a couple’s savings account is not prepared to handle the influx of expenses for burial and funerals. Even when a couple is financially secure, there are certain legal issues to contend with, one of which is the probate process.

When a spouse dies, the other person in the relationship may assume that he or she will not need to go through the lengthy probate process; after all, as the surviving spouse, doesn’t everything automatically transfer into his or her name?

Not necessarily. And for that reason, you may end up going through a much longer, and more challenging, probate process than you had anticipated. Remember that probate is just the structure provided to assess an estate’s assets and debts, so even if you are a named beneficiary in a will, you still have to go through the process in some capacity.

Are your assets jointly held?

Say you move into a home with your spouse. After he or she dies, you learn that the deed to that home is held by your spouse and his/her sibling. Technically, you have no claim to your own family home, and unless your spouse provided some way for you to remain in that home, you could be forced out by the surviving sibling.

Or, say that your spouse has his or her own bank account. If he or she passes away, and you are not named in a will as a beneficiary, or granted power of attorney over those assets, they could be seized by the state.

There are beneficial reasons, though, to go through probate after a spouse dies. If, for example, your spouse had a vehicle in his or her name only, you would need to go through probate in order to have that deed transferred into your name, so you could sell the car. If your spouse has substantial assets, you also need to go through probate.

What happens if your spouse had someone else listed as the beneficiary?

Most people would assume that one spouse would have the other listed as the beneficiary in the will, but that is not always the case. If you are not listed in the will, or if there is no will, you might need to go through a lengthy probate in order to claim what should be rightfully yours. If someone else is named beneficiary, then you may need to contest the will in order to regain control of your assets.

What if I’m not in the will? Will I lose everything?

There could be a few different reasons why you were not included in the will. These are some of the most common reasons:

  • The will was created before you got together with your partner
  • You were contemplating divorce at some point and your partner changed the beneficiary
  • Your spouse chose to list other relatives as the beneficiary

There is a good chance that your spouse never updated his or her will to include you as a beneficiary. If this is the case, you can contest the will, but it is no guarantee that you will win. Your best chances will come with hiring a probate litigation lawyer to help you.

Did your spouse recently pass away? While you are grieving the loss of your partner, you may have just found out that he or she did not have a will or did not have you included in the will. In this case, you may need to go through probate. Let Wagner & Wagner Attorneys at Law help you get through this process in a stress-free manner. Call us at 423-756-7923 or fill out the contact form on our site. We represent clients in Cleveland, TN, Chattanooga, and all surrounding counties.