Do You Need an Attorney? Understanding Legal Issues After Your Spouse Dies

Filed Under (Probate) on 11-27-2012

Death of a spouse, When a spouse dies, Probate property, Probate Process, Probate Forms

By Marilyn W. McWilliams , JD

In most cases, after death, the surviving spouse becomes responsible for administering the deceased’s estate.  As a result, you may wonder if you need a lawyer’s help.

Usually you will benefit from at least a one-session consultation with an experienced estate attorney.

You probably don’t need much legal assistance if your spouse has few assets with little financial value and they are owned in joint tenancy with you. Or, you are the named beneficiary and your spouse has little or no debt or your spouse does not leave minor children or have adult children from another marriage.

On the other hand, if you have any complications, good attorneys can spot certain issues – of which few people are aware – that can make a big difference in your life and future.  An attorney can also, potentially, save you and your family a lot of money. Here are some ways an attorney can help:

1.    Your emotional state vs. the task at hand: After a loved one’s death, you may not be in a frame of mind to take on a project that involves a lot of details and fact-finding. A well-staffed law firm will locate and collect assets far more quickly than you can. Further, their trained staff can scan bank accounts for assets you may not know you have.  Finally, if you are going to be selling real estate while the property is going through probate, an attorney can begin the probate process and prepare a Personal Representative deed for the transfer.

2.    Handling estate tax returns: You will likely need to determine if federal and state estate tax returns should be filed for your estate. These returns are quite different from ordinary income tax returns, and a qualified attorney can help you sort through this matter.

3.    Litigation related to blended families: In our society, about half of first marriages end in divorce. This results in blended families. If there are adult or minor children from a previous marriage, litigation can result from a lack of estate planning, or it can arise if either you or the children are unhappy with the deceased’s estate plan.

4.    Large debts, business ownership, or out-of-state real estate ownership can cause special legal considerations in the event of a death. You will want to consult an attorney in these situations.

For more information, see Life After Death: a Legal and Practical Guide for Surviving Spouses, by Marilyn W. McWilliams, JD.

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