I am always relieved when I can explain to a grieving spouse that there may not be too many details to take care of after the loss of their spouse. Here are some of the key points that I always review in this situation.
1. Does the surviving spouse’s health care and financial power of attorney name at least two additional persons to make decisions after the deceased spouse? If not, the surviving spouse may want to update this to ensure that they have a team of people lined up to help them when these documents will matter the most.
2. Did the deceased spouse have a last will and testament? If the surviving spouse determines that probate is not necessary (because the deceased spouse setup all assets to go to the surviving spouse) then the person in custody of the original will has a duty to file it with the Probate Court in the county where the person resided or passed away. A copy of the death certificate should be submitted with the original will.
3. Are all remaining assets setup to avoid probate upon the surviving spouse’s death? It is not uncommon that an old life insurance policy or IRA account was setup and only a primary beneficiary was setup – the spouse. If the spouse who was beneficiary passed away then it is critical for probate avoidance that the beneficiary designation is updated to a trust, children, or whoever the surviving spouse wants to receive that asset.
4. Has the will and trust been reviewed? If a couple prepared a standard joint revocable trust then the trust will just continue on for the benefit of the surviving spouse. But if anything other than the standard was done, it is critical to take the next steps. Here are some examples.
a. If the deceased person had a trust separate from their spouse then a trust administration process should be started.
b. If the deceased setup a testamentary trust in their last will and testament to trigger at death, then that trust will have to be administered. This is a technique we use for Medicaid planning for couples to protect assets.
c. A couple could have a joint trust that becomes irrevocable upon the first spouse to pass away. This may be used in situations where additional control over the trust assets is desired when the first spouse passes away.
While there may not be much that has to be done when a spouse passes away, it is key to have a conversation with an estate planning attorney who can make sure you haven taken all necessary steps to ensure you are taken care of and your estate is setup to avoid probate upon your passing.
