FAQ - Death, Probate & Wills

I am WECTU's Eldercare Answerman. My FAQs discuss many of the primary issues that we have to address when assisting our loved ones as they age. For more indepth topical information, please check out my Blog, my Podcasts and my Elder Care Search Wizard.


If you have a specific request regarding a topic that I have not addressed, please use the form at the bottom of this page to contact us with your request.


1 – My husband is terminally ill. He has a pension and Social Security benefits. I have a very small Social Security benefit. What will happen to this income that we have been living on when he dies?

When your husband dies, you will be eligible to step up and claim his full Social Security benefit. Your Social Security benefit will then go by the wayside. In most cases, the pension or a portion thereof should inure to your benefit. A number of years ago the ERISA pension law was implemented and protected spouses by requiring the spouse to disavow in writing the survivorship benefit in order to lose a portion of their deceased spouse’s pension. You may be eligible for a full pension benefit and in the case of governmental and other pension plans the benefit may equal approximately 50% of your deceased husband’s pension benefit. You should contact Social Security immediately upon your husband’s death and begin doing the necessary leg work to secure information regarding the survivor benefit pursuant to your husband’s retirement plan.

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2 – My mom has no will. What will happen to her assets when she dies since she is suffering from a case of advanced Alzheimer’s disease?

If your mom passes away without a will she will die intestate meaning that the state intestacy statutes will write her will. By way of example, if a person dies without a will but with a surviving spouse in the state of Maryland, the children can inherit up to one- half of the estate which is subject to probate. Keep in mind that this process only applies to assets subject to the probate process. Investments such as retirement accounts, annuities, life insurance policies, payable on death, or transfer on death accounts will pass to the beneficiary directly and not be subject to the dictates of the will or the intestacy laws. This also applies to jointly held accounts and life estate deeds. It would be wise for you to check all the beneficiary designations and the titles on the assets to try to avoid an intestacy situation. If your mother still has lucid moments, you may be able to implement a comprehensive power of attorney so that the appropriate steps can be taken in to avoid the intestacy statutes in the state in which you are mother lives.

Related blogs: Dying Without a Will, Handwritten Will

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3 – My uncle named a niece and two nephews as the beneficiaries of his will. One of the nephews died six months ago. What would happen to his share of my uncle’s estate? The nephew who died had two children.

My answer depends on how the will was constructed. If the will states that the assets only go to the three of you or those of you that survive then the nephew’s children would have no claim to assets in the estate. Many documents are written in such a way that it says that the assets would go to your nephew if surviving if not to his descendants per stirpes. This strange designation means that your uncles estate would be divided one- third to the niece one- third to the nephew and 1/6 to each of the deceased nephew’s children.

Related blogs: Passing Assets to Heirs

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4 – I live in the state of Maryland. I’ve heard the term probate. When I die do my assets have to go through probate? Is it an expensive process?

The probate process takes at least six months and usually up to a year to complete. It encompasses only those assets that you have in your individual name. You never want to close in the estate that is what is known as a large estate until the six months has elapsed. Otherwise the personal representative of your estate can have personal liability in the event that claims, debts and taxes of the estate are not paid. The process can both be time-consuming and costly. Where possible you may want to utilize a revocable living trust, life estate deeds, beneficiary designation, and creative titling of assets in order to avoid the probate process. Before doing so, it is always wise to consult with an experienced estate and trust lawyer.

Related blogs: Dying Without a Will, Handwritten Will

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5 - My father died and we’ve been unable to find his will. In fact, he may never have even executed a will. What will happen now given the fact that we have no will?

Your father has died intestate. This means that he had no will. Any asset that lists the beneficiaries such as a life insurance policy or an annuity will pass directly to the stated beneficiaries. Those assets that are held jointly with a family member will also pass directly to those individuals. With regard to bank accounts or investment accounts, you should determine whether they name a beneficiary. These are known as either payable on death accounts [POD] or transfer on death accounts [TOD]. All other assets contained in your father’s estate in his name alone will pass to his heirs according to the laws of intestacy in the state of residency at the time of his death.

Related blogs: Dying Without a Will

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6 - Currently I reside in the state of Connecticut. I spend part of the year in New Mexico. I own property in both states. Will my children have difficulty handling my state when I die?

The major problem that they will be confronted with will be related to the fact that you spend time in two different states. They will have to determine where you are domiciled at the time of your death. Are you a resident of Connecticut or New Mexico. They will have to document where you spend over six months each year. It gets complicated if you vacation for a long period of time in other states or countries. At the very least your family will be forced to open probate estates in both Connecticut and New Mexico unless you use either a revocable living trust or a life estate deed which will pass the asset directly to your heirs without the need of a protracted probate process.

Related blogs: Revocable Living Trust, Life Estate Deeds

Related podcasts: Vacation Home Issues, Life Estate Deeds


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