By: Susan M. Graham, Certified Elder Law Attorney, Senior Edge Legal, Boise, Idaho
It depends.
If a deed to the home or other real property is titled “George and Sally, Husband and Wife” it will be necessary to “probate” George’s estate to remove his name and put the deed in just Sally’s name..
Probate is a process where Sally, the surviving spouse, files a variety of papers at the court and she asks to be allowed to manage her husband’s affairs. A judge will sign an Order that gives her the power to sign on behalf of her deceased husband. Once she has that power she can sign a new deed putting the real property in her individual name. If she does not probate George’s estate, Sally will not be able to sell the home or other real property. Why? It takes two signatures to sell the property. Both owners, George and Sally, need to sign the deed, but without a probate, Sally has no legal authority to sign on behalf of her deceased husband, George.
If the husband’s name was not on a deed, but the total value of all his other assets titled in just his name, such as vehicles, bank and brokerage accounts and other investments exceeds $100,000, his estate must also go through the probate court.
Usually it is easy to collect life insurance, annuities and retirement accounts, if a beneficiary was listed to receive that asset at death. Sally, the surviving spouse, can just call the company that holds the asset and they will send a form to complete and return with a certified copy of the death certificate. The company will then send a check to Sally.
If there are joint bank accounts, the surviving spouse should have no trouble continuing to use that account. Often the social security number of the husband was used as the tax identification (ID) number for the account. The tax ID number should be changed to the wife’s social security number.
George and Sally could have planned ahead with a qualified estate planning attorney and eliminated the cost and time it takes to probate George’s estate.