Specific Legal Issues Following the Death of a Spouse
When a spouse passes away there may be no need to open an Estate, but there are certain things you will need to deal with. This advice is in addition to the items already covered.
9. Do I need to probate my spouse's Will?
Usually this is not necessary. It depends on whether your spouse owned assets in his or her own name. If so, you will usually not be able to take control of those assets without probating your spouse's Will to have an Executor appointed, since your spouse's Power of Attorney can no longer be used. If all of your assets were in joint names, they now belong to you without the need to open an Estate, file an Inheritance Tax Return, or take other legal action.
If the only asset in the name of your spouse was an automobile, you can change the title into your own name at a motor vehicle license transfer office (such as AAA) without opening an Estate. They generally need a Death Certificate and the original vehicle title, and may ask to review a copy of your spouse's Will.
10. Should I take my spouse's name off our joint accounts?
Generally this is a good idea, since it is easier for you to change the registration of your accounts as the surviving owner than it will be for your Executor if those accounts end up in your Estate. One exception is the checking account - some women don't remove their husband's name from the checking account to avoid signaling to strangers that they are single and living alone.
11. Should I take my spouse's name off any title to real estate?
If you own real estate jointly with your spouse you will be the sole owner of that property following your spouse's death. There is no need to have a new Deed prepared listing only your name, since it is an easy matter to explain in the Deed when you eventually sell the property, or when your Estate sells it.
12. Should I notify anyone regarding the death of my spouse?
Even if all of your assets were in joint names, you should notify:
A. Social Security - the funeral director notifies Social Security so that checks will no longer be sent for your spouse. However, you should call Social Security if your spouse's check was larger than yours, since you can continue to receive the larger amount, but you must ask for it.
B. Spouse's Pension Plan or 401(k) Plan Sponsor.
C. Investment broker - Your investment broker should be called to conduct a review to see if changes are needed. For example, if you and your spouse have held an investment jointly for many years and were reluctant to sell any of it due to the capital gains tax, your broker should know that the capital gains on your spouse's half of that investment disappeared when your spouse passed away. Capital gains on that half of the investment will be calculated from the date of your spouse's death, not from the date you acquired the investment.
D. Banker - You may want to review IRA's and other accounts to see if changes are appropriate.
Please Note: It is the purpose of these questions and answers to provide a general guide to various legal issues so that you can be better informed when you talk with your attorney. They are not intended to provide legal advice, which you should seek from your attorney. There is no substitute for good legal advice specific to your situation. Please feel free to call on us at Herr & Low, P.C., to assist you with estate planning and settlement legal issues.
Revised: August 5, 2004.