Many times I have the family of the second spouse contact me regarding probate of his or her estate. As I discuss the matter I learn that the first spouse died years earlier, and, since everything passed to the second spouse, no probate was done for the first spouse.
While this isn’t an insurmountable problem, it does complicate the probate process. If the first spouse died more than four years ago, the first spouse’s will cannot be probated. An affidavit of heirship can be filed in the real property records, but it must be on file five years to be determinative of title. In cases where five years have not passed, an heirship proceeding must be commenced for the first spouse. This increases the cost of probate considerably.
Accordingly, probate the first spouse’s will. It may be that all you need to do is a muniment of title to pass title to the second spouse, and no administration is necessary. Regardless, spending the time and money at the death of the first spouse to get it right will save considerable time and money later at the second spouse’s death.