When a spouse passes without a will, the spouse’s estate goes through probate. Probate is a state process determining where a deceased’s property will go. This also depends on state laws. There isn’t an easy way to determine where probate assets may go since there are a number of variables that determine the final destination of the property.
But for a spouse that did have a will, can the surviving spouse override that will if they disagree with it? That’s what we’ll answer in this article.
Which is better? The quick answer is: Do you want your assets to go through probate? With a will, a probate course is involved. The state courts will distribute assets. It’s difficult to say how long the process will take. Of course, if the person didn’t have a complex estate or many assets, probate might not take too long to complete.
In some cases, other potential heirs will file claims with the probate court, which can cause the process to take much longer.
When a trust is used instead of a will, probate is unnecessary. All assets will be distributed according to the trust’s instructions. Additionally, if each parent has a trust, two probates can be avoided.
Consider what happens if a spouse passes and leaves everything to the surviving spouse. The surviving spouse then remarries. The surviving spouse could put all assets in the new spouse’s name, cutting out the children.
However, if the deceased spouse puts their assets in a trust for the surviving spouse, the above scenario is avoided. When the surviving spouse passes, remarried or not, the children inherit the remaining assets.
If you are unsure which is right for you (i.e., a will or trust), it’s best to speak with an attorney. Many factors are involved in making this decision.
Some states, such as California, have community property laws, which means that any assets acquired during marriage are community property unless a prenup says otherwise. The details of this can get complicated in the case of a divorce or separation.
A spouse can create a will stating what happens to community property. The will might state that none of the property goes to the surviving spouse, and all of it goes to the children. This basically disinherits the surviving spouse.
Beneficiary designations can override a will. These are beneficiaries on accounts such as a 401k, bank account, or CD. Even if a will states that 100% of assets will go to Person A, any designated beneficiaries on accounts will override what is stated in the will. Note that designated beneficiaries avoid probate.
Additionally, a single account can have multiple beneficiaries and distribute funds based on percentages. For example, a savings account can distribute 50% to Person A, 25% to Person B, and 25% to Person C. The same can be stated in a will. However, stating the beneficiaries on the account this way avoids probate.
When the surviving spouse holds property in joint tenancy (with rights of survivorship) with the deceased spouse, probate can also be avoided.
Note that the laws vary across states. Additionally, ownership and beneficiaries can be complex topics, which is why it’s best to discuss these topics with an attorney.