Losing a spouse is an extremely difficult time in life and handling the administration of their estate can be a stressful experience. When you are ready, it is important to seek the advice of an estate planning and elder law attorney to discuss what needs to be done on behalf of your spouse’s estate and also what planning you need to do for your own estate.
Your attorney will want to review all assets held by your spouse, whether individually or jointly with you, and all assets in your name. It is also important to review any previous estate planning documents you may have in place, such as last will and testaments, trusts, powers of attorney, and health care directives. A thorough review of the assets and estate planning documents will help your attorney advise you on what additional planning, if any, needs to be done.
If your spouse was the owner of an IRA or other tax deferred retirement account, you are likely named as the primary beneficiary on the account. You will want to ensure that you roll-over this account into an IRA account in your name. It will also be necessary for you to put your sole name any accounts that are held jointly with you and your spouse or that name you as transfer on death beneficiary. Furthermore, it is important you update the beneficiaries under these accounts where appropriate, especially if your spouse was previously listed as your primary beneficiary.
You will need to go through a court process to gain control of assets held in your spouse’s sole name without a beneficiary. The court proceeding is called “probate” if your spouse had a last will and testament, or “administration” if your spouse died without a last will and testament. New York State law provides a scheme for the distribution of assets in the case of a person that did not execute a last will and testament. If your spouse had children, you and the children will share in the assets of the administration estate. There are also certain rights that a surviving spouse has to assets of the estate that your attorney can advise you on.
Lastly, a review of your current estate planning documents will help determine if updates to your plan are required. For example, you will likely need to change your agents listed under your power attorney and health care proxy if each document listed your spouse as agent. Additional changes to your will and/or trust may be required if there are changes to the tax law, your family structure, or personal health status, such as a need for long term care.