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Estate Planning: What is it, and What do you do if your Spouse Passes Away without a Will?

Spousal loss is an extremely difficult tragedy, so we want to help make this process as easy as possible. We hope that our educational articles may help you to understand some of your legal/financial responsibilities following loss. While these articles can be helpful to understand some of the processes, this does not take the place of professional legal or financial advising in any way. Please contact your estate lawyer to handle the probate process & estate planning. This article is meant to explain the Maryland, DC & Virginia probate processes in plain terms. This is not legal advice. **


person signing contract

Your "estate" isn't just your home-- it includes every tangible & intangible thing that you own—your car, bank accounts, investments, life insurance, personal possessions, and more. People typically create a "will" to explain how they'd like their estate handled when they pass away. But, what happens when someone passes away unexpectedly, without a will?

There are procedures that vary from state-to-state, and we will explain these in further detail below. When your significant other passes away, your estate will be handled by the "probate court". What is the probate court, and why do they exist?

"The purpose of probate is to prevent fraud after someone's death. [...] It's a way to freeze the estate until a judge determines that the Will is valid, that all the relevant people have been notified, that all the property in the estate has been identified and appraised,  that the creditors have been paid and that all the taxes have been paid" ("How Probate Works in Maryland", n.d.)

Whether or not your late spouse created a formal will, the probate assets will be transferred to the court, who will then distribute said assets either to those specified in the will, or based on local "Intestate Succession Laws". The probate process generally follows these steps:

  1. File a petition with the probate court and notify heirs/beneficiaries.

  2. An executor, whom is either pre-specified by your spouse or chosen by the court, will be appointed as a representative of the estate.

  3. The personal representative must then notify all known creditors of the estate (i.e. phone companies, utility companies, banks, etc.)

  4. The representative must take an inventory of the estate property (including the furniture, clothing, investments, etc.).

  5. An appraiser will determine the net worth of the estate.

  6. All debts (from the creditors), as well as expenses from the funeral, must be paid off with the estate.

  7. Finally, the property titles are transferred to the heirs/beneficiaries either according to the will, or under the "laws of intestacy" (in the case that your spouse did not have a will).

We'll discuss state-specific processes below, but we first want to discuss the general procedures that occur, both in the case that your spouse did have a will, and in the case that they did not. Note that:

"Some assets do not have to be probated and generally are not controlled by a will. These assets include: 1) Life insurance proceeds, which are paid to the beneficiaries designated in the policy. 2) Property held in joint tenancy, which provides that, upon the death of one joint tenant, the deceased person's interest automatically passes to the surviving joint tenant(s).3) Property held in living trusts" ("Estate Administration: The Will After Death", n.d.).

Essentially, any personal property with your name in the contract (i.e. joint bank-accounts, house deed, etc.) will automatically be transferred to you, because these contracts override the probate process.


If your Spouse had a Will

two people looking over contract on paper

Following the passing of your spouse, you (or another family member, friend or estate planner) will contact your local probate court & admit the will/petition. You will present the will to the court, and as long as the will was formal/legally-binding, the court will appoint the specified "Executor" to ensure that the property is distributed according to your spouse's wishes.

The Executor is an individual, whom is specified in the will as a representative of the estate-- they are chosen by the decedent (your spouse) in the will-writing process. They will attend the court hearings and will-reading. Generally, you must notify all heirs/beneficiaries about the court hearing for the petition; this is meant to give these individuals a chance to object. Generally, notice of the first "hearing is published in a local newspaper. This is to attempt to notify others, such as unknown creditors of the decedent, of the beginning of the proceeding" (Cuddy, 2019).

Next, the Executor will give written notice to all creditors about the passing of your spouse. These creditors generally consist of phone companies, home-utility companies, banks, the federal government, etc. whom the decedent owed money to (due to bank loans, unpaid bills, etc.). These creditors must make a claim on the assets within a certain time-frame, as specified by state laws.

Next, the Executor must take an inventory of all of the estate owned, including the decedent's investments, bank accounts, house(s)/apartment(s), personal property (glassware, clothing, car, etc.), and hire an appraiser (or receive a court-appointed appraiser) to determine the net worth of the estate, and more specifically, the "non-cash assets" i.e. personal property. The estate will be used to pay-off any debts owed to creditors, as well as pay for any funeral expenses or expenses resulting from the probate process.

After all expenses are paid for, the Executor petitions to the probate court to request authority over the remaining estate, which they will transfer to the heirs/beneficiaries as stated in the will and last testament. The Executor must ensure that all beneficiaries received the estate that is specified in the will; this may involve liquidating assets, creating new deeds or transferring stocks/property.

"If the will calls for the creation of a trust for the benefit of a minor, spouse or incapacitated family member, money is then transferred to the trustee. Unless the beneficiaries of the estate waive the requirement as allowed under some state laws, the petition may include an accounting of how the assets were managed during the probate process" (Cuddy, 2019).


If your Spouse did not have a Will

two men looking over documents

This process is very similar to the process stated above. The main difference is that, since there is no specified Executor, the court will appoint an Administrator of the Estate during the first probate court hearing. The Administrator of the Estate has the same responsibilities as an Executor; essentially they are responsible for notifying creditors, taking inventory of the estate & ensuring proper payment of the debts.

Since there is no will to determine "who gets what" from the estate, the probate court will decide the heirs/beneficiaries (determined by local "laws of intestacy" or "Intestate Succession Laws"). These laws vary by each state, and we will discuss this in further detail below. However, this generally means that:

"In many states, if you are married and have children, your spouse and children will each receive a share [of the estate]. That means your spouse could receive only a fraction of your estate, which may not be enough to live on. If you have minor children, the court will control their inheritance" ("What is Estate Planning?", n.d.).