Spouses may not feel there is any reason to draw up a will due to the assumption a surviving spouse automatically receives all assets. If a spouse is a co-owner of a home or the joint holder or beneficiary of a financial asset, no probate process is needed to transfer ownership. However, when an asset is owned solely by one spouse and no beneficiary is named, the transfer of ownership must go through the probate court.

Better estate planning combined with drawing up a will helps avoid a lot of probate problems:

Intentions Do Not Legally Count

Unless the spouse clearly defines what he/she wishes to be done with assets upon his/her passing, the transfer of ownership is based on current laws. If current legal statutes lead to a decision outside the wishes of the deceased, not much can be done.

For example, in the state of New Jersey, a spouse who remarries may want to leave all the funds from solely-owned checking, savings, IRA, or money market accounts to his/her surviving spouse. The children from a previous marriage are not to receive any of the funds. Per New Jersey law, when there is no will, the surviving spouse's receipt of these assets is subject to the percentage limitations set forth by intestate succession. A significant percentage, by law, must go to the surviving children regardless of what the deceased wished.

Better estate planning could avoid such an undesirable outcome. Had a will be drawn up leaving all assets to the surviving spouse, the funds automatically go to him/her. Or, in an estate planning meeting with an attorney, a decision could be made to designate the spouse as a joint owner or beneficiary.

Even Simple Steps Are Not So Simple

Even if the spouse is the sole heir, a lack of a will or poor estate planning could frequently cause delays. Walking into probate court and claiming to be a spouse who has ownership rights to, say, property or other assets is not enough. The courts are, not surprisingly, going to require proof. The courts could request some of all of the following documents:

• A marriage certificate
• Deeds to property
• Notarized affidavits regarding the relationship
• Divorce documents from prior marriages

Not all of these documents are easily or quickly procured. What if you were married 40 years ago in another state and no longer have any copies of the marriage certificate? A request for the marriage document could take several months. What if property needs to be sold to pay legal fees, taxes, or funeral costs? Basically, everything remains in limbo until the proper documents are procured. Again, better estate planning with an experienced attorney helps avoid such scenarios.