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Thomas Swartz
Thomas Swartz, Lawyer
Category: Intellectual Property Law
Satisfied Customers: 3152
Experience:  Twenty one years experience as a lawyer in New York and New Jersey. Former Appellate Law Clerk.
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The will states that the property that was owned jointly between

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The will states that the property that was owned jointly between the spouses goes to the surviving spouse. The lawyer that wrote the will told my mother that she does not have to file probate. However, nothing in the will is mentioned about his artwork. Does she need to file for probate to have the rights to his art or is that already the case?
I would recommend filing for probate. Let me explain a few basics.

A will only distributes property of the deceased that is in the deceased "estate." Property that is jointly owned does not become part of the estate because it comes with rights of survivorship. Thus, once a joint owner dies, that jointly owned property passes automatically to the surviving joint owner by operation of law. There is no need to probate property that is jointly held.

However, property that is not jointly owned does become part of the deceased's estate and must be distributed through the will in the probate process.

It would be unusual for artwork to be jointly held. And since the will does not specifically mention the artwork, it would be necessary for the probate court to issue an order distributing any remaining property rights not specifically mentioned in the will so that your mother has clear legal rights to the copyrights to the artwork.

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