Probate: Is it required when my spouse passes away?

“My husband recently passed away. Both of our names are on the house, he had a Will, and everything was left to me. Do I still need to go through Probate?”

This question is asked so often, I wish estate planning basics were taught in high school.

The answer is specific to you, but most often the answer is yes, Probate will be required.

It may make zero sense at first, but there is a valid reason for requiring Probate in this situation.

However, not all Estates are required to go through Probate. *See last week’s post.

Then why would a Surviving Spouse be required to Probate the deceased spouse’s Will?

As a general rule, the State of Idaho will not presume that you intend to leave all of your assets to your surviving spouse.

Why? Because, legally, there is no requirement to leave an inheritance to anyone (If you are the surviving spouse and you have been completely disinherited, there are options available to you as well).  

The expectation of an automatic transfer from spouse to spouse, unless explicitly taken by you through legal documentation, does not exist.

If you own it, you can leave it to anybody you choose, whether that person is a spouse, child, friend, charity, etc.

If you created a Will, it holds no legal authority until the Probate Court gives it authority. For the Court to give the Will authority, the Will needs to go through Probate.

If you decide not to create a Will or Trust, the State of Idaho, through its laws of Intestate Succession, will distribute your assets for you. Probate is required for Intestacy because the Probate Judge is required to oversee that your assets are distributed according to the laws of Idaho. Intestacy typically includes leaving assets mostly to your spouse and then some to your kids, no matter their age. That means at age 18, your kids will receive their inheritance and have absolute control over that money.

There are a few options available to you that are less expensive, time consuming and simpler than Probate. If you read that post, it is important to remember that these options may avoid probate on certain assets when the first spouse passes away. Aside from the Trust, those options do nothing to avoid probate when the second spouse passes.  I offer a word of caution. Taking some of these steps to avoid probate on certain assets does not guarantee that you will avoid probate on other assets. Using a Living Trust or a Family Trust is the only available option that allows you the opportunity to avoid probate on all assets for both spouses.

Your Estate is required to go through Probate regardless of your marital status. The unfortunate aspect is that many surviving spouses don’t know that they need to Probate the Will. Failing to Probate a loved one’s Will often results in complications and even legal disputes once the surviving spouse attempts to sell or encumber the property or among those who are to ultimately to inherit the property once both spouses have passed away.

If you live in the Meridian, Eagle, Star, Nampa, or Boise areas of Idaho and you don’t have a Will or Trust, call attorney Justin Jeppesen at 208-477-1785, or visit my website at, to ensure that your wishes have a voice and are carried out.