Ask an Advisor: My Husband Doesn't Have an Estate Plan. What Are the Problems That I Could Run into?

My husband does not have a living trust, nor am I on his bank accounts as a beneficiary. I’m also not on the title of our home that we have lived in for the past 30+ years. What are the repercussions that I may run into should he perish before me? All I have is a statement written that says he’ll leave me all his assets. I am 69 years old.

– Jan

The state you live in matters a great deal here. Nine U.S. states follow community property law, meaning each spouse owns half of all the assets acquired during the marriage. If your husband dies before you and you live in a community property state, you’ll retain at least a 50% ownership share of those assets. This is true even for property that’s titled in only one spouse’s name, like your home, as well as retirement and bank accounts (unless they were inherited or gifted to one spouse).

If you need help planning your estate or managing other financial matters, speak with a financial advisor and see how they can assist.

Now, if you live in a common law state and you aren’t named as a beneficiary on his accounts or a joint legal owner of your shared home, your husband may want to set up a formal will (not just a handwritten note) that identifies you as his inheritor. If there’s no will, the process may not go as smoothly.

Importance of Estate Planning

An estate plan can comprise any or all of the following elements:

A will
Instructions for funeral arrangements and other personal wishes
Account beneficiary designations
A trust
Power of attorney
Advance health care directive

These documents give family members and others who manage a person’s estate detailed instructions for handling health care and financial decisions, distributing or managing assets, paying debts and more.

If your main concern is how the assets will be distributed, consider focusing on creating a will, updating beneficiary designations and possibly establishing a trust. (And if you don’t have an estate plan and don’t know where to start, consider working with a financial advisor who offers comprehensive financial planning, including estate planning.)

The Role of a Will in an Estate Plan

A person who dies without a will is considered to have died “intestate.” This means the estate goes to probate court, where the state decides who inherits what under state intestacy laws. These laws usually favor the surviving spouse and children, but other dynamics like divorce, stepchildren or dependent parents can complicate asset distribution.

You mentioned that your husband wrote a statement of his intent to leave you his assets. Check your state’s requirements for wills, because it may need to be signed in front of at least two witnesses who aren’t his heirs, and possibly notarized, to be legally recognized. Some states accept holographic wills, which are handwritten documents that may or may not require witnesses.

As you describe your current situation, I can imagine a worst case scenario might be that your husband dies intestate (without a valid will) and you live in a common law state. In this case, the fate of all of his assets, including your home, would be up to the courts.

You would be saved considerably if you live in a community property state and there’s no will, since only his 50% portion of the marital assets would be at stake (remember, you automatically own the other half by virtue of being married).

Here are the nine community property states:

Arizona
California
Idaho
Louisiana
Nevada
New Mexico
Texas
Washington
Wisconsin

Regardless of where you live, all wills are validated through the probate process. If your husband drafts a formal will that names you as the inheritor of his half of the marital assets, there still may be some administrative headaches to validate the will and transfer the assets to you. Probate can sometimes take months, and it’s public, so it opens up the estate to relatives, friends or even business partners who might believe they deserve a cut.

(If you need help finding a financial planner, this free matching tool can connect with advisors who serve your area.)

Potential Next Steps

First, consider creating wills that clearly express each of your final wishes, both financial and personal. If you and your husband also want greater privacy and a simpler transfer process, you can take additional steps to keep your assets out of probate and make the transition easier for heirs.

You can do this in one of several ways:

Name Beneficiaries on Financial Accounts

Whether you live in a community property or common law state, your husband can transfer liquid assets to you most easily by naming you as the beneficiary on his financial accounts. These assets pass directly to you and avoid probate entirely.

At most financial institutions you can update beneficiaries online. Checking, savings and CD accounts call it a “payable-on-death” designation while investment and retirement accounts use the term “transfer-on-death.” The beneficiary simply needs to fill out a form and present a death certificate and identification to assume ownership of the account.

Retitle Your Home

Proper home titling can save you trouble later, particularly if you live in a common law state where spouses don’t automatically have a claim to a marital home. You and your husband may want to consider holding the property as Joint Tenants with Right of Survivorship or, if available in your state, as Tenants by the Entirety. Both forms of ownership allow the home to pass directly to the surviving spouse at death, avoiding probate and ensuring continuous ownership.

Set Up a Trust

If your husband has substantial assets and wants to minimize taxes or control how his property is distributed, a trust might be worth considering. Trusts come in many forms with varying costs, so it’s best to discuss your options with a financial advisor or estate planning attorney.

Bottom Line

Several challenges can arise when a person dies without an estate plan, even if you’re married. Learning more about your state’s laws can help you understand what assets, if any, you would automatically inherit if your husband dies before you. From there, you can decide together what steps to take to ensure everything lands in the right hands.

Estate Planning Tips

Before meeting with an attorney or drafting documents, take time to think about your intentions: who should inherit your assets, who should manage them and what values you want reflected in those choices. Having this clarity makes every later step in the process easier and more purposeful.
Accounts like retirement plans, life insurance policies and bank accounts often pass directly to named beneficiaries, regardless of what your will says. Make sure these designations are current and reflect your present relationships and intentions.
Even if you’re not ready to finalize an estate plan, talking with an estate planning attorney or financial advisor can help you identify gaps. Finding a financial advisor doesn’t have to be hard. SmartAsset’s free tool matches you with vetted financial advisors who serve your area, and you can have a free introductory call with your advisor matches to decide which one you feel is right for you. If you’re ready to find an advisor who can help you achieve your financial goals, get started now.

Tanza Loudenback, CFP® is a financial planning columnist who answers reader questions on personal finance topics. Got a question you’d like answered? Email AskAnAdvisor@smartasset.com and your question may be answered in a future column.

Please note that Tanza is not an employee of SmartAsset and is not a participant in SmartAsset AMP. She has been compensated for this article. Some reader-submitted questions are edited for clarity or brevity.