Question: My spouse died without a will. He owned our house in his name alone, but I co-signed mortgage refinance papers two years ago. We also own one car, paid in full, but titled in his name alone. We have a joint bank account that I intend to keep using. He named me as his designated beneficiary on his life insurance and his 401(k). We didn’t have any children together. I have an adult child from a previous marriage, and my husband has a brother.

Questions:

  • Do I need to open a probate?
  • Is my husband’s brother an heir, entitled to receive some of our assets?
  • Does the fact that I signed the mortgage papers make me an owner of the house?
  • Why should I notify my husband’s creditors about his death?

Thank you,

Nancy

Answer: I’m sorry for your loss, Nancy.

Let’s start with the good news. As the spouse, you are your husband’s only heir. His brother is not entitled to any part of your husband’s estate, and while it might be nice to include him in the process of distributing your husband’s assets, you are under no legal obligation to do so. Also, the items that you and your husband owned jointly, like the bank account, and the accounts on which you were listed as the designated beneficiary, such as the insurance and 401(k), pass to you automatically, without any need for probate. You will, however, need to open a probate in order to get the house (and car) transferred to you. Signing the mortgage refinance papers does not make you an owner.

Part of the probate process is notifying creditors. Although your reasons for not wanting to do that are obvious, notifying creditors does have benefits for you. It creates an orderly process by which those creditors will be dealt with, and puts a limit on the amount of time that they have to assert a claim against your husband’s estate. In other words, it will give you a way to know that everything has been handled correctly, and will give you a date at which you will be certain that this whole thing is behind you.

Moving forward, there are couple of lessons that you may want to keep in mind as you reconfigure ownership of these assets. As you may now be learning, you will be doing your family members a huge favor if you put some thought into what you want to have happen to these assets after you pass away. As it stands, it sounds like your adult son would inherit everything. But that might not be what you want, and even if it is, there might be easier ways to pass assets to him than through probate. It doesn’t have to be complicated, but making sure that you’ve titled the assets correctly, confirmed that there will be adequate cash available to deal with any creditors that you may have, and left instructions about who should get what will likely save your family members a lot of time and money.

If you’re looking for a way to learn the basics about estate planning, I offer a free e-mail course about estate planning. Also, please see my page about my estate planning process.