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.

Linda

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
 

A cautionary tale, many people want to keep their estate plans confidential

Dear Len & Rosie,

My wife’s father passed away recently and she and her siblings are not on best terms. They would like to see if there was a will but don’t know how to locate the executor. Her father had told her it was someone outside the family. How does one find out who the executor of a will is, and for that matter how does the executor find out someone has died?

Marco

Dear Marco,

Our first inclination was to respond with simple “How would we know?” You’re looking for a needle in a hay stack. Your father-in-law’s will, assuming he made one, could be anywhere. He could have named anybody as executor, but it’s more likely than not that he named one of his children, or maybe one of his friends. Ask his friends discretely, if you know who they are.

It is also possible that your friend named his lawyer as executor, but this is not very likely. Attorney fees in probate are fairly lucrative. A lawyer for a $500,000 estate earns $13,000 in statutory lawyer fees, the same as the executor. But if the lawyer also serves as executor, he or she gets paid only once. Double dipping is not allowed. Most attorneys decline to serve as executors for the simple economic reason that there’s nothing in it for them.

You also touched on the problem of an executor learning of the death. If the executor isn’t close to your father-in-law, how’s he or she going to know? Consider that your father-in-law’s executor may not actually know that he or she is named as executor in the will. Did your father-in-law even inform this person? For all we know, your father-in-law’s will may be gathering dust in an attorney’s filing cabinet.

What you should do is to contact the county bar association where your father-in-law lived. The county bar can send a blanket email to all of its trusts and estates members to see if any of them created the will.

You may also have to sort through your father-in-law’s belongings to see if there is a copy of a will lying around, or maybe even a canceled check made out to a local attorney. If you can’t find a will, then the estate will pass by intestate succession equally among your father-in-law’s children, with the share of an already deceased child passing to his or her living descendants, assuming he wasn’t survived by a spouse. Any of the children may petition the court to be appointed as administrator of the estate, which means this could lead to a fight over who gets to be administrator.

This is a cautionary tale. Many people want to keep their estate plans confidential, but they should not be too secretive. Some of you may go so far as to make extra copies of your wills and trusts and pass them out to your children. If you don’t want to do that - if you wish to protect your privacy, then just give your children or other beneficiaries your attorney’s business card with a note telling them to contact the attorney upon your death or incapacity.

Len & Rosie