Do you need to probate your husband’s will even though he left everything to you? It may seem to you that there’s no reason to probate a spouse’s will because it leaves everything to you. But there may be very good reasons to go through probate.
Question: My husband passed away three years ago. My husband and I both have Wills that leave everything to the surviving spouse. We do not have any children. Is it necessary to probate my husband’s Will since all we really have is our house and everything goes to me, the surviving spouse? Everyone knows that my husband’s Will leaves everything to me.
Answer: Although your friends and relatives may know that your late husband’s Will gave “everything” (all of his interest in his real and personal property) to you, the surviving spouse, if his Will is not probated, the disposition of your husband’s property will not be “of record” for the public-at-large to know.
Why is this important? If you choose to sell your house during your lifetime or at your death, if your heirs decide to sell your house, the record title of the house will need to be cleared up. An attorney or title company can clear up the record title by probating your husband’s Will (and your Will, if the sale of the house is after your death).
Another alternative could be to prepare an affidavit of heirship for the estate of your husband but, since it has been less than four years since your husband’s death, his Will can still be easily probated. Probating a Will is not an expensive process, especially if the Will is self-proved. Further, if there are no debts of the Estate and there is only real property or land at issue, the Will may be probated as a muniment of title, which is even less expensive.
Remember that even though you and your friends and relatives know what your husband’s Will says, the Will is not “of record” until the Will is probated and is part of the official probate records of the county. Soon or later, when your house is sold someone will have to probate his Will or file an affidavit of heirship. In a future article, I will discuss in more detail an affidavit of heirship.
