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.

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

  • Michell Bradie

    Under the laws of intestacy in Texas, since your mother had children not of the marriage to your step-father, any separate real property would pass 1/3 to her husband for life, and 2/3 to her children subject to the life estate. So, in addition to any homestead right he may have, he also has a partial life estate, which terminates on his death. This does not give him any right to transfer an interest in the property on his death.

    Eventually, a probate of your mother’s estate needs to be taken care of. It would make sense to do it now, since that way, all parties involved will have a determination of what they actually own. Since your mother had no Will, and more than 4 years have passed since she died, it will be too late to have any type of administration. For a judicial determination of who gets what, your only options would be either a Determination of Heirship without Administration, or a Small Estate Affidavit, if it otherwise qualifies. We have a lot of information on our web site about what is required for Small Estate Affidavits, and that would be the least costly, by far, if it would qualify for that. Understand that your step-father would also need to sign off on the Small Estate Affidavit, if you go that course, so it might be helpful for him to sit down with an attorney so he understands what rights he actually has, rather than just taking your word for it. Good luck with it.

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