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Doesn’t everything automatically go to my spouse?  Well, maybe.  Depends on your definition of “is”.  Recently our office had a situation where a husband passed away suddenly while running errands.  It turns out that everything was just in his name – the vehicle he was driving, bank accounts, etc.  What this means is that if their estate is over $150,000 gross value, his wife will have to go through probate.  And if he had no will, the estate will be divided according to intestate rules (intestate is the technical term for dying without a will). Everything does not automatically go to your spouse.

How Intestate Succession Works

The Division

A surviving spouse gets all the community property, but they only get either one-third or one-half of the separate property, depending on whether the decedent is surviving by one or more children, or their issue.  If there is no surviving spouse, the estate is divided equally between the children.  This comes as a surprise to some, but whose name is on an asset matters.  The courts view things held in only one spouses name as separate property by default.  For the surviving spouse in this situation, essentially everything important is considered separate property because her name isn’t on it.  Can you imagine suddenly co-owning everything with your children? 

The Process

An intestate estate will either go through probate, or if small enough summary probate.  The probate process is not a fast one, and often you will find yourself waiting – waiting for a death certificate, waiting for a court hearing, waiting for the time period for notice to creditors to run out, waiting, waiting, waiting.  Even with “summary probate” you wait for the death certificate, and have to navigate unfamiliar forms and court procedures.

Read more about the Probate process.

When Does Joint Ownership Not Make Sense

Most of the problems outlined above can be avoided by spouses when the title assets in both of their names.  That however, can create its own set of problems.  Here are several common reasons I hear in the office for not putting a spouse on title:

  • To get better terms for a loan on a house
  • The asset really is separate property
  • One spouse is exposed to greater financial risk
  • One spouse is disabled, and unable to manage financial matters

Regardless of the reason, when you chose to hold an asset in only one spouse’s name, you need to be aware of the consequences, and plan accordingly.  An estate planning attorney can help you sort through the pros and cons of each approach, and help you avoid unintended results.  Looking at the list above, there is one reason for choosing separate titles that actually matches the results – when the property actually is separate property. 

In the meantime, the surviving spouse in our story is waiting for the death certificate to get the family vehicle out of the impound lot, because that too was just in husband’s name.

Image courtesy of phanlop88 at FreeDigitalPhotos.net

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