Spouse passed before Estate Planning was put into place. Now what?

Dear Len & Rosie,

Friends recommended an attorney to us for the revocable trust we wanted, but my husband passed away before our scheduled appointment with the attorney. If our home, vehicles and bank accounts were in both our names, do I need to see an attorney? If I was his designated beneficiary on his IRA and bond funds, do I need to see an attorney for any reason?


Dear Betty,

Ownership of assets titled in joint tenancy or as community property with right of survivorship passed to you automatically as a result of your husband’s death, as did any assets for which he named you as a pay-on-death beneficiary, such as Individual Retirement Accounts, other retirement accounts, and life insurance policies. For any accounts you and your husband own together or for which you are named as a beneficiary, all you need to do is to provide each financial institution a certified original death certificate and fill out a few forms. Make sure that you roll over your husband’s IRA into your own IRA instead of just cashing it in.

To remove your husband’s name from the deed to your home, you need to sign an affidavit of death of joint tenant, assuming the home is in joint tenancy, and record it with your husband’s death certificate. There is also property tax paperwork to be submitted to the County Assessor to ensure your home is not reassessed under Proposition 13. We recommend that you do not do this yourself, unless you are already experienced in preparing and recording deeds. Deed work should be done by attorneys and title insurance companies.

But that’s not all. It is also important to obtain date-of-death appraisals of your home and any other assets you own with a cost basis, such as securities. You need to do this to establish evidence of the new cost basis of each such asset resulting from the step-up in basis that happened when your husband died.

If there are any assets titled solely in your husband’s name, or any real property held in tenancy in common, see an attorney. You’ll either have to probate your husband’s estate, or file a spousal property petition with the court to get these assets into your name.

After that’s all said and done, you need to look to your own estate plan. You need to create a trust so that your estate will avoid probate upon your death. Sure, you could put everything in joint tenancy with your children, but that’s an awfully bad idea for many reasons, not the least of which is that your children will own part of your home, and you won’t be in complete control of your life any longer.

Len & Rosie