QUESTION
Am I correct in assuming that upon my death my wife will not have to go through the probate?
Asked on May 14th, 2013 on Estate Planning - California
More details to this question:
I bequeath all my assets in my Last Will to my wife. All these assets are non-probate ones (joint bank accounts, title tenants in the entirety, she is a beneficiary of my IRA.)I stipulated in my will that if a predecease her; my cousin should receive 50% of my estate.
22 ANSWERS
Business Law Attorney serving Bingham Farms, MI
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James T. Weiner, P.C.
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Generally you are correct but without a complete inventory of your assets there is no way to be sure. As to what happens if your wife predeceases you who get the other 50%
Answered on May 16th, 2013 at 11:11 AM
Estate Planning Attorney serving Wilmington, DE
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Reger Rizzo & Darnall, LLP
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If everything is joint or by tenants by the entireties, or joint with right of survivorship, nothing would pass under your will, it would go the the joint owner by operation of law at your death.
Answered on May 16th, 2013 at 11:11 AM
Unfortunately, you are *not* correct in assuming that your wife will not have to go through Probate upon your death. There are many factors that may cause an Estate such as yours to end up in Probate if the proper Estate Plan is not in place. You should consult a local attorney for a consultation (feel free to contact me if you are in the Metro-Detroit area) to review your assets and discuss your wishes. That way, a proper plan can be formulated that fits your specific needs.
Answered on May 16th, 2013 at 11:11 AM
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All non-probate assets pass pursuant to titling not your Will. So if your wife survives you she'll receive all non-probate assets and 1/2 of your probate assets, ie furniture furnishings, etc. except in Nevada if the value if the probate assets are less than $100,000 then they all must go to your wife regardless of Will. If you do not want that, then you should consider a trust. I suggest you meet with an attorney to review your Will and powers of attorney.
Answered on May 16th, 2013 at 11:10 AM
Domestic Relations Attorney serving Milford, MI
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Gabel, Gudmundsen & Gabel, P.C.
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If all of your assets are titled so that they pass directly to another person upon your death (and if you have beneficiaries named for those assets that pass to beneficiaries), there should be nothing to probate. Assuming that your wife is the other name on titles and/or the beneficiary named, she will end up owning everything. If you have merely named your cousin in your will and if there is nothing to probate, your cousin will get nothing. You should confer with an estate planning attorney to make sure that your estate passes as you wish.
Answered on May 16th, 2013 at 11:09 AM
If as you say the assets are not probate assets, then your will is of no effect. A will only controls assets that are in your name alone. If your wife predeceases you, and you still have the assets that were formerly held jointly by you and your wife,then your will would pass those assets to your cousin. On the death of you or your wife, if you are correct in your statement that ALL of your assets are held jointly or have named beneficiaries, then there is nothing to probate.
Answered on May 16th, 2013 at 11:09 AM
Trusts Attorney serving Sacramento, CA
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Law Office of Victor Waid
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Not having seen the documents, a probate may be required because the real property does not appear to be titled right, as tenants in the entireties, does not have a right of survivorship, and the fact if you predecease your wife, 50% of the estate goes to a cousin. Joint tenant title on the bank accounts and the beneficiary designation of the IRA allows for passing of these accounts outside of the probate.
Answered on May 16th, 2013 at 11:08 AM
Probate Attorney serving Newport, OR
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Minor, Bandonis & Haggerty P.C.
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If you're correct that all of your assets are joint with your wife, or have her named as beneficiary, then yes, she will inherit without going through probate. You'd be surprised how often there is one forgotten account, a vehicle, a boat, or some other asset that remains in the decedent's sole name. So your cousin is out if you predecease your wife; there will be no probate estate for him to get a share of.
Answered on May 16th, 2013 at 11:08 AM
Employment Law Attorney serving Dana Point, CA
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Mains Law Office
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I would suggest you clarify your question to get a proper answer. First you state that you leave everything to your wife and then you state "if you predecease her, 50% goes to your cousin." If you predecease her, which means that you die first, according to what you have stated, your cousin would get 1/2 of your assets. Perhaps what you meant to state was if your wife predeceases you, so you are the last or second to die, then your cousin gets half although it is not clear where the other half goes. Your real property in California should be titled Husband and Wife Community Property with Rights of Survivorship in order to avoid the taxes and get the stepped up basis. Tenancy by the Entirety is not recognized as a form of holding title in California.
Answered on May 16th, 2013 at 11:05 AM
If all assets will automatically go to your wife, your will will have no effect and is not needed to pass your assets to your wife. Legally, she need not follow your will. Your estate will have nothing.
Answered on May 16th, 2013 at 11:05 AM
Business Planning Attorney serving Livonia, MI
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Frederick & Frederick Attorneys at Law
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If the assets are jointly owned or your wife is named as beneficiary, then she would be the owner upon your death. (That assumes that you predecease her.) Where does your cousin come into play? A Will only controls assets titled in your name alone. Anything joint or with a beneficiary passes outside of probate and outside of the Will. You would not even need a Will, if you predecease your wife in this scenario. If your wife dies before you, YOU would own everything. So if you misspoke and your Will provides that if your wife predeceases YOU, then the cousin gets 50%, what happens with the other 50%. Your best bet is to see a lawyer to make sure everything is set up properly to achieve your objectives. Wills may not be the best way to go and there are additional documents needed, such as durable power of attorneys for health care and financial matters.
Answered on May 16th, 2013 at 11:04 AM
General Practice Attorney serving Coeur d'Alene, ID
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Michael B. McFarland, PA
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In Idaho, she may need to go through a "summary administration where the surviving spouse is sole heir" to clear the title to the jointly held real estate; but that is a simple and inexpensive process.
Answered on May 16th, 2013 at 11:04 AM
Probate Attorney serving St. Louis, MO
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Edward L. Armstrong, P.C.
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You are correct as to your assumptions with respect to your wife. As to the others, I depends on whether they will be joint owners, beneficiaries of TOD or POD accounts or simply named in your will. If they are simply named in your will there must be probate first (if your wife predeceases you, for example).
Answered on May 16th, 2013 at 11:04 AM
Taxation Law Attorney serving Glendale, CA
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Irsfeld, Irsfeld & Younger LLP
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Your wife will not have to go through probate. We do not have tenancy in the entirety in California.
Answered on May 16th, 2013 at 11:03 AM
If the assets are in joint accounts with your wife, then they will pass outside of probate if you were to die today. This type of estate planning often goes off the tracks when things change or your joint accounts are not set up the way you think.
Answered on May 16th, 2013 at 11:03 AM
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Your wife will not go through probate if all assets are community or there is a will leaving everything to her. If she predeceases you, your cousin or any other beneficiary will have to go through probate.
Answered on May 16th, 2013 at 11:02 AM
You need to look at whether is any probate property. That is what will determine whether your estate will be probated. No probate property, no probate estate absent claims from creditors or for fraud, etc.
Answered on May 16th, 2013 at 11:01 AM
No. If you personally owe any debts that she does not or cannot pay or you have any assets that are not automatically transferred to her on death, a creditor or she would have to open a probate estate. Same goes for your cousin.
Answered on May 16th, 2013 at 11:01 AM
Business/ Commercial Attorney serving Bellevue, WA
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Lana Kurilova Rich PLLC
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If 50% of your estate is to go to your cousin, then there is going to be probate to determine the value of your share of the community property estate and divide share that between your wife and your cousin. Perhaps some assets would need to be sold to satisfy the cousin's share. So no, under this scenario, your estate will most likely need to be probated.
Answered on May 16th, 2013 at 11:01 AM
Probate Attorney serving New Orleans, LA
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James G. Maguire
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That's correct.
Answered on May 16th, 2013 at 11:01 AM
Commercial Contracts Attorney serving Boise, ID
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Peters Law, PLLC
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Probably not, but there can always be something to pop up and make probate necessary. However, given that she gets everything, it would not be difficult.
Answered on May 16th, 2013 at 11:00 AM
Edwin K. Niles
Probate would be necessary only for those assets in your name alone. Jointly held assets would go to the other owner upon the death of one owner. "Payable on death" or "named beneficiary" assets go to the named beneficiary. Your will does not affect those assets.
Answered on May 15th, 2013 at 7:32 PM