Husband passed away before an Estate plan was put into place.

Dear Len and Rosie,

My husband passed away recently We have no will or trust at this time. We understood that as long as there was a surviving spouse you didn't need one of these items that everything automatically passed to the surviving spouse. This was the case when my mother-in-law passed and her husband was the surviving spouseNothing would go through probate. Is this accurate or not? Please help.


Dear Linda,

Please accept our condolences for your loss. Chances are more than likely that everything now belongs to you, but it really depends on how you and your husband held title to your home and your other assets, and whether or not he owned any separate property. Any accounts that you and your husband held in both of your names now belong to you.

When you order death certificates, get one for your home, and one for each financial institution, life insurance company and retirement account you will have to deal with. You will need to remove your husband’s name from the title of all of your jointly held accounts and make sure they are under your Social Security Number, not your husband’s. The banks are familiar with this and will know what to do. However, keep your husband’s name on one of your joint accounts for a few months, so you’ll be able to deposit any checks made out to him that come in the mail.

Most married couples, when buying their homes, have them titled in Joint Tenancy. If this is the case, then you will need to sign and record an Affidavit of Death of Joint Tenant to remove your husband’s name from the title of your home. If your home is not held in Joint Tenancy, or Community Property With Right of Survivorship ("CPWROS"), then it becomes more complicated.

Any assets titled solely in his name shall pass by intestate succession, the law that determines who gets what when someone dies intestate. As his widow, you inherit all of the Community Property, but any Separate Property (assets he owned prior to the marriage or assets he inherited), is inherited by you and his children - or even his parents or siblings if he had no children.

What you really need to do is to gather up the most recent account statements for all of you and your husband’s accounts, together with the deed to your home, if you can find it, and consult with a trusts and estates attorney. He or she will be able to help you figure it all out. If there are assets titled solely in your husband’s name, it may be necessary to file for probate, or if it’s all Community Property, you can file a Spousal Property Petition to obtain a court order confirming your ownership.

When you meet with the attorney, look to your own estate plan. You may need a trust to avoid probate, and you definitely need a Durable General Power of Attorney and an Advance Health Care Directive so that persons you trust can handle your affairs should you ever become incapacitated.

Len & Rosie