When your spouse dies, it seems very cruel that most people are then subjected to probate, a very complicated legal process to access the money and assets that your spouse solely owned. For widowed parents who need to go through probate, these are the top frequently asked questions:

What is probate?

When someone dies, probate is the legal process followed to:

• Validate their will (if there is one)
• Identify, inventory and appraise their solely owned assets and property
• Pay debts and taxes
• Distribute remaining funds to the heirs

Do you have to go through probate?

Not necessarily. Your jointly owned assets do not have to go through probate. If your late spouse had very few assets in their name, the estate might qualify as a “small estate” in which case the process is less cumbersome, and assets can be distributed without going through the full probate process, sometimes skipping probate altogether. Every state has different definitions of what qualifies as a small estate.

Do you need to hire an attorney?

No, but you should strongly consider it. Since my late husband had what qualified as a small estate, I thought I would be able to handle the process myself, but I couldn’t even understand the initial form that needed to be filled out. After several frustrating visits to my local probate court to get guidance on how to complete it, I eventually hired an estate attorney to take care of it, and it took him just a few months to close the estate.

How long does the probate process take?

The probate process usually takes around a year, but it can take several years, depending on varied factors including the state you live in, the size of the estate, and if the will is contested. Most states require a 3-6 month period for creditors to submit claims before closing probate.

All our money was in my spouse’s account and is now frozen by probate. Can I access any of it?

Many states provide a “family allowance” (also called “probate allowance” or “support allowance”) during probate to the surviving spouse, minor children and, in some states, adult dependent children. The allowance is money paid from the estate to cover living expenses before the estate is fully settled. The surviving spouse or guardian can request the allowance from the probate court, and it is usually approved quickly. The duration and amount of financial support received varies widely by state.

My spouse didn’t have a will. How will our property be distributed?

If someone dies without a will, their property will be distributed based on their state’s intestacy laws. For example, in Connecticut the surviving spouse would receive the first $100,000 plus half of the remaining estate, and the rest would be split amongst their children together.

What assets go through probate?

• Property that passes through a will or intestacy (the state laws on how to distribute property in the absence of a will) must always go through the probate process.
• Individually owned assets without a designated beneficiary (for ex: a car or bank account in your late spouse’s name only)

What assets don’t go through probate?

• Financial accounts that have a designated beneficiary (example: retirement accounts)
• Financial accounts that are titled “transfer-on-death” (TOD) or “payable-on-death” (POD) (example: bank or brokerage/investment account)
• Jointly owned assets (example: joint bank account or house titled in both names)
• Assets in a trust

Disclaimer: I am not an expert on the probate process and am merely passing along information based on my understanding and experience of it.