Do Both Husband and Wife Need Their Own Wills?

Your Will is a document that allows you to transfer the property that you own on your death to the people or groups that you want.  Since you can only transfer your property, and not your spouses’ property, they need their own Will to give their things to the folks that they want.

Rarely we will see a “joint” Will, which is one Will made for both the husband and the wife. These joint Wills were usually prepared many, many years ago when some attorney’s still used them.

There are many potential problems with having this type of Will. The most obvious is that the Will cannot be changed in any way after the first spouse dies. So if you want to later change a beneficiary, or change or add an Executor, or even do some tax planning, you can’t. You are locked in. If you have a joint Will, and you and your spouse still have capacity to make new ones, you and your spouse really need to make new separate Wills.

If you have any questions about making Wills, or would like a no-cost review to see if your current Wills do what you want them to, please give us a call or email to set up an appointment.

163 comments to Do Both Husband and Wife Need Their Own Wills?

  • Lydia

    My husband and I have lived together 32years 22years married. He is 25 years older than I and has 3 older kids and grand/great/grandchildren. We have a 17 year old together. We have a owned a home for 20 yrs and 2 old cars and a bunch of junk. He is eighty yrs and in excellent health. I am 55 and have a lot of health problems. We need wills but we don’t have a lot of money to pay for them. My husbands older children are all over 40 years old and are doing fine. We want to leave everything to our youngest child. What type of will would we need and how much does it cost. Our daughter is about to turn 18 and we don’t need a trust. So is there just a basic will that’s simple and low cost that we can get. We are both on social security. Thank you

  • Michell Bradie

    If you have filed the Will for probate and have been appointed as the Executor of the estate, you have authority to act on behalf of your mother’s estate. That may require that you file some action in the court to collect the assets of the estate that are in the possession of her husband if they are not supposed to pass to him. However, the burden of proof will be on you to show that he has wrongfully taken the property. You will need to discuss this with your attorney.

  • Michell Bradie

    You are welcome to call our office to discuss your estate planning needs if you live near by and we can discuss costs with you. Both you and your husband would each need your own Wills. The documents that our office prepares are not the least expensive documents that you can find out there, however we believe that the value provided for the services of our firm are very reasonable. We have have seen a lot of inexpensive on-line Will forms that have been just awful, and have wound up costing our clients a lot more to probate than if they had just paid an attorney to prepare their Wills properly the first time. Often times the old expression, “You get what you pay for” is true.

  • Ulysses Hester

    If planning to divorce my wife, would you advise me to use different attorney to draft my last will and testament. My thinking is that she might use some of my assets against me in a divorce proceeding.

  • Michell Bradie

    The attorney would likely not feel comfortable representing you unless there was disclosure of the fact to your current spouse, and your spouse waived any potential conflict. Most reputable attorneys would not want to be put in the position where the information that they obtained about one client could even potentially cause them to not be able to adequately represent the other client, so they would wind up withdrawing as counsel for both. So, yes, I would recommend that you use a different attorney, unless you have discussed this with your spouse, and you both agree to the representation, and the attorney agrees to it with the understanding that both clients are okay with it. Technically, joint representation can be acceptable if full disclosure is made and all parties agree, but I don’t believe most attorneys would like to be caught in between.

  • serena

    My husband and I are both traveling and would like to have a will that is only good if we both die together while on travel; what do we need to do?

  • Michell Bradie

    Each of you should both have your own Wills, rather than one Will. Your Will can certainly specify what should happen in the event that both of you die together, but it should also cover the event that only one of you should die. An attorney should be able to assist you with preparing Wills to cover each eventuality that could come up. It is possible to prepare Wills to cover the limited circumstance that you discussed, however, it wouldn’t really make much sense to limit it that way.

  • ATHULA DE SILVA

    We have been married for 32 years and we have a son and two daughters. The title deed of the house does not include my name but wife’s name. Can I still do a will separate from my wife’s one indicating that I would like to give equal share of our house to two daughters when I die.

  • Rita Yakeera

    my husband and I made one “will”. at the time I thought that it was okay, however, after some brain storming, I want to make my own “will” even though
    we have a joint will. I guess my question is, am i able to prepare my own will separately in addition to my joint will?

    thank you
    Rita

  • Rebecca

    If I get married can I still have a separate will that holds up?

  • Michell Bradie

    Yes, you can and should have your own Will, separate and apart from your spouse. I would make sure that you prepare a Will after you get married, unless you can show that you have clearly provided for your spouse in your Will that was prepared in anticipation of marriage. It is best practice to prepare a new Will after marriage, so that it is clear that you have dealt with your spouse and community property of this current marriage in your Will.

    In Texas, you can only transfer what you own, which is whatever separate property you have (if any), and your share of the community estate. Your distribution does not need to look like that of your spouse. So long as you are not transferring your spouse’s share of the estate, you can give your property as you wish in your Will.

    Understand, however, that you must still comply with our homestead laws, which say that your surviving spouse has a homestead right in the marital residence for as long as they continue to live their as their primary residence. It does not require that they have any ownership interest in the homestead to be able to claim the interest. So, even if you own 100% of the homestead as your sole and separate property, and you wish to leave it to your children on your death, if your spouse is living there as his or her primary residence at the time of your death, they are entitled to continue to stay there for so long as they wish to use it as their primary homestead residence (they must continue to pay the taxes, etc.) but your children will NOT be able to force them out, or force a sale of the homestead property while they are using it as their homestead.

  • Michell Bradie

    I do not recommend joint Wills. Period. If you prepare your own Will, it will revoke your portion of the joint Will. That is fine. I strongly recommend that both you and your spouse each make your own Wills. With a joint Will, once the first person dies, you can never make any other changes. So, if the people that you name as beneficiaries should pass away, or all the people that you name as Executors, Guardians or Trustees or their Alternates should die, or move away, or become incapacitated, you will be unable to name anyone new or make any changes. If there are changes in the law that would require you update your documents to take advantage of those changes, you will not be able to do so.

  • Michell Bradie

    Property that is acquired during marriage is presumed to be community property, except for those by gift, devise or descent. So, if the house was not your wife’s separate property, given to her as a gift, inherited by her, or she has some other way to claim that it is her sole and separate property, then it is normally presumed under Texas law that you have a community interest in that property, even if your name may not be on the deed. It may be what is also called “sole management community property”. If that is the case, there is nothing wrong with you gifting your share of the community estate to whomever you wish. Just remember that if that house is the residential homestead, your spouse will also have her own homestead right in the house. That means that even if you owned 100% of it, and left it all to your daughters when you died, your spouse still has a homestead right in that house if she is living there as her primary residence at the time of your death. If so, she may continue to live there, and no one may force the sale of that property, so long as she is paying the taxes, etc., and continuing to use the property as her primary homestead residence. If you own half of the house, then when she decides to sell, you children have a right to participate in the sales decision and get half the proceeds. Alternatively, if she doesn’t want to sell, but she decides to move away, so that she is no longer living there as her primary residence, then your children could force a sale at that time. Texas provides very strong homestead protections, even if the spouse that is living in the homestead residence is not the owner of the property, but is just married to the homestead owner. I hope this helps.

Leave a Reply

 

 

 

You can use these HTML tags

<a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>