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

Mar 13, 2019
8 min read

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. **

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:

File a petition with the probate court and notify heirs/beneficiaries.
An executor, whom is either pre-specified by your spouse or chosen by the court, will be appointed as a representative of the estate.
The personal representative must then notify all known creditors of the estate (i.e. phone companies, utility companies, banks, etc.)
The representative must take an inventory of the estate property (including the furniture, clothing, investments, etc.).
An appraiser will determine the net worth of the estate.
All debts (from the creditors), as well as expenses from the funeral, must be paid off with the estate.
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

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.).

Maryland Probate Process

The entire probate process takes approximately one year from the original appraising/valuing of assets, to the ultimate distribution of assets/estate. In Maryland, the probate law does not require an initial will-reading. However, the original will must be filed with the "Orphans Court" and "Register of Wills" office in the appropriate county.

Additionally, the Executor specified in the will does not receive immediate power, and instead, the nominated individual must petition to the Orphan's Court and receive official approval via a Letter of Administration, which authorizes the nominee to act on behalf of the estate. The probate process is required for any individuals who passed away with assets in their sole name.

"Even if an individual dies with an original last will and testament and no assets in his or her sole name, the original will must be filed with the Register of Wills office. In many cases, the petitioner may never have to appear before the court." (Castellini, n.d.).

If no will existed, then the court will determine how to distribute assets. In the case that you are a surviving spouse, this is how assets would be distributed. This information was found on the People's Law: Library of Maryland website.

If your spouse has no living parents or children: You will inherit everything.
If your spouse has children who are under the age of 18: You inherit ½ of the intestate property, and the children inherit everything else.
If your spouse has descendants, and all are over the age of 18: You inherit $15,000 of the intestate property, and ½ of the rest. The descendants inherit everything else.
If your spouse has living parents but no descendants: You inherit $15,000 of intestate property and ½ of the rest. The parents inherit everything else.

Virginia Probate Process

The Virginia probate process is similar to Marylands. First, the original will should be given to the local Clerk’s Office of the Circuit Court. The probate tax must be paid at the time of filing the will. Next, the person approaching the probate court create a list of the deceased assets and appraise them. If appropriate, the court will nominate the Executor or Administrator of the estate.

However, the legal appointment of these individuals is not always required in the state of Virginia.

"This is usually true where the estate is a small asset estate, personal property having value on the date of death of no more than $50,000.00" ("Probate in Virginia", 2015)

The Executor/Administrator is still required to pay-off the debts to creditors when appropriate (with the estate). In the case that your spouse passes, and you are a surviving spouse, Virginia Intestate Succession law provides a course of action. As stated in the "Probate in Virginia" document that is prepared and issued by the Virginia Court Clerks’ Association:

If your spouse has no children: You will inherit everything.
If your spouse has children or descendants (of someone other than the surviving spouse): You inherit one-third, and the remaining two-thirds is divided among all children.

DC Probate Process

woman standing in front of courthouse pillars

The DC probate process is essentially the same as the general processes mentioned previously. The Executor/Administrator of the Estate will pay-off creditors, appraise the property & handle the distribution of assets. However, the DC intestate succession laws are a bit more confusing than Maryland & Virginia (details found here).

If your spouse has no living parents or children: You will inherit everything.
If you have children/descendants biologically related to both you and your spouse, and you have no other descendants (biologically unrelated to your spouse): You inherit 2/3 of the intestate property, and descendants inherit 1/3 of the intestate property
If you have children/descendants biologically related to both you and your spouse, and you have other descendants (biologically unrelated to your spouse, from another relationship): You inherit 1/2 of the intestate property, and your descendants inherit 1/2 of the intestate property
If you don't have children/descendants biologically related to both you and your spouse, and your spouse has other descendants (biologically unrelated to you, from another relationship): You inherit 1/2 of the intestate property, and their descendants inherit 1/2 of your intestate property
If your spouse has surviving parents: You inherit 3/4 of the intestate property, and the parents inherit 1/4 of the intestate property

Importance of Beginning Process in a Timely Manner

If the assets are not jointly owned (i.e. they lack a "beneficiary designation"), the probate process is the only way to transfer legal ownership of the personal property. So, what happens if you wait to begin this process?

"Often by not beginning the probate process in a timely manner, tax filing deadlines may be missed and assets may eventually be turned over to the unclaimed property division in the state where the asset is located" (Castellini, n.d.)

We hope this article helped to understand the basic steps and laws associated with the probate process. Note that this article is meant to offer basic information, NOT legal advice. The information presented in this article is not all-encompassing, so please consult an estate attorney or lawyer to assist you through the process. This article is only meant to give you an understanding of the process in plain terms.

Citations:

Castellini, K. (n.d.) How Maryland Probate Works. Retrieved online at: https://trustandestateslawyers.com/maryland-trusts-and-estates-lawyer/probate/works/ [Accessed 13 Mar. 2019].
Cuddy, R. (2011). The Probate Process: Four Simple Steps. Retrieved online at: https://www.legalzoom.com/articles/the-probate-process-four-simple-steps [Accessed 13 Mar. 2019].
Estate Planning (n.d.) What is Estate Planning? Retrieved online at: https://www.estateplanning.com/What-is-Estate-Planning/ [Accessed 13 Mar. 2019].
Find Law. (n.d.). Estate Administration: The Will After Death. Retrieved online at: https://estate.findlaw.com/estate-administration/estate-administration-the-will-after-death.html [Accessed 13 Mar. 2019].
Legal Consumer. (n.d.). How Probate Works in Maryland. Retrieved online at: https://www.legalconsumer.com/inheritancelaw/topic.php?TopicID=20&ST=MD [Accessed 13 Mar. 2019].
NOLO. (n.d.) Intestate Succession in the District of Columbia. Retrieved online at: https://www.nolo.com/legal-encyclopedia/intestate-succession-the-district-columbia.html [Accessed 13 Mar. 2019].
The People's Law Library of Maryland. (2019). Maryland Intestacy Law. Retrieved online at: https://www.peoples-law.org/maryland-intestacy-law [Accessed 13 Mar. 2019].
Virginia Court Clerks' Association. (2015). Probate in Virginia: Administration of Estates. Retrieved online at http://www.courts.state.va.us/courts/circuit/resources/probate_in_virginia.pdf [Accessed 13 Mar. 2019].