Estate administration is the last think you want to deal with after you lose a loved one. The loss of a spouse is not just a significant trauma, it also requires the surviving spouse to make several critical decisions regarding the administration of their deceased spouse’s estate. Ideally, the deceased spouse left a will or trust stating how to dispose of their property.
Following are some considerations after the death of a spouse.
Is Full Probate Necessary?
Probate refers to the legal process of administering a deceased person’s property. Not all property is considered part of the probate estate, however, and in many cases the actual estate may have few or no assets. Many spouses own certain assets, such as their house, car, or investment and bank accounts, joint with rights of survivorship. These assets will pass to the surviving spouse without any need for probate. Similarly, if the surviving spouse was named a beneficiary of certain assets, such as a life insurance policy or retirement account, that property also does not require probate.
Virginia offers expedited probate if the assets in the estate are under a specified value. Thus, the first thing to determine is whether probate with full administration is necessary or if a smaller, quicker, and less expensive process might be available.
If probate is necessary and the deceased spouse left a will, it should name an executor, who is often the surviving spouse. If there was no will, then the spouse has priority to be appointed as administrator of the deceased spouse’s estate, although other people can qualify if the spouse does not do so.
If probate is necessary, the surviving spouse is not required to take on the role of administrator or executor; the surviving spouse can decline the appointment as executor and nominate someone else to serve. If the surviving spouse does not qualify as administrator, then other people may do so. Often, however, it makes sense for the surviving spouse to retain control and hire an experienced Virginia probate attorney to assist them with the administration of the estate.
The Surviving Spouse’s Rights Under Virginia Law
Virginia law allows a surviving spouse to make certain claims and elections against the deceased spouse’s estate. If the surviving spouse was disinherited or left little from the estate of the deceased spouse, Virginia law permits the surviving spouse to claim an “elective share” from the deceased spouse’s “augmented estate,” which includes both probate and many non-probate assets. The elective share claim is available even if the deceased spouse left a will. The surviving spouse can also file statutory claims and allowances that have priority over creditor claims. By filing these claims and allowances, the surviving spouse can guarantee that he or she receives some assets (to the extent they are available) and is not left without resources if the deceased spouse had significant debts in his or her own name.
Virginia also has special rules governing “omitted” spouses. A spouse is omitted when the deceased spouse made a will prior to marrying the surviving spouse and did not update it after the marriage. Under this circumstance, the law assumes that the failure to update the will after the marriage was an oversight and thus allows the omitted surviving spouse to claim the same share they would have had the deceased spouse died without a will. One thing to note about elective share, statutory claims and allowances, and omitted spouse rules is that they can be contracted away by prior agreement between the spouses via a written prenuptial agreement signed before the marriage or a marital agreement signed during the marriage.
Let Us Help With Estate Administration
If you have questions about the process of administering a spouse’s estate, please call Promise Law today at (757) 690-2470 to schedule a complimentary 30-minute probate consultation.