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.

109 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.

  • Sueya Frost

    Hi Michell, my husband and I are married for 16 yrs. He has 3 grown children from his previous marriage, and I have one from my previous marriage. My question to you is that can my husband and I have one will leaving everything to whoever survives the other, and the other spouse can dictate however he or she wants to, like dividing all assets in 4 ways to all of our children after the surviving spouse dies… we have two houses (one primary resident and the other is rental property)and 112 acres of property that has a cabin and a warehouse built on the property (everything that is on the property is paid in full). Everything we have today is what we have built together after we’ve got married. I have heard that if we don’t have a will written, the state can take some…
    Thanks you.

  • Michell Bradie

    I would NEVER recommend that folks prepare a joint Will. That would be professional malpractice to prepare, in my opinion.

    You have some property that is asset protected, like your homestead, and other property that is sitting out there unprotected. You and your husband should sit down with an estate planning attorney since you need not just estate planning, but also require asset protection to keep folks from walking away from your property if you are ever sued, or if a tenant sues.

    While you are there, you should discuss your concerns regarding trying to provide for your children from a prior marriage. You can only control what property is yours, being your separate property, if any, and your share of the community property. You are unable to control what your spouse does with their property. So in that appointment, you might consider use of life estates, or transferring some property directly to your children, to prevent disinheritance. Your attorney should also be able to discuss other non-probate alternatives, such as insurance policies or second to die policies that pay to your children to guarantee that they will get something if your spouse should later change his distribution by Will or Revocable Living Trust.

    Blended families bring unique issues, and that is not something that you should try to handle on your own. Both of you need to sit down and plan with an estate planning attorney to make sure that your estate plan is properly drawn up, and will likely require formation of entities to protect your rental property and warehouse.

    Regarding the State taking your property if you don’t have a Will, that is not really accurate. Your property would escheat to the state ONLY if they were unable to locate any heirs-at-law. However, the cost of probate would be much, much more expensive if you die without a Will, so much of the estate would be eaten up in probate costs, unfortunately.

  • Skip Steller

    Hi Michell,

    How do I address this situation in a will:

    I want to leave most of my funds to my only daughter, but I also want to leave some funds to a few other family members provided that I end up having enough funds in the end to do that and still leave my daughter a substantial amount. My concern is that, although I have enough funds to do that right now, there is the possibility that most of those funds could be used up for something like long term health care, in which case I would want my daughter to get all funds left. There is also the possibility that the total funds available may be substantially higher when the time comes.

    How do I stipulate my desire in a will…. if and only if….???

    Also, since my wife is my daughters step mother: If I go first, are there any particular tax considerations to be aware of when my wife
    dies and my daughter inherits from her?


  • Michell Bradie

    Skip, I would strongly advise that you meet with an estate planning attorney to assist you with what you are trying to accomplish. Not all estate planning happens inside a Will, and if we sat down, I would probably suggest that some of it pass outside probate.

    As far as taxes, assuming that everyone is a resident in Texas, if it is not a federally taxable estate, there should be no tax consequences with a transfer from your wife to your daughter, or whom ever she should provide for by her Will. Texas (at least at this point in time) had no separate estate tax and no inheritance tax. Understand that your wife could change her Will after you pass to name anyone she wishes as a beneficiary. She is not required to leave anything to your daughter if she doesn’t wish to. If she should die without having a Will prepared, then your daughter would take nothing from her, since she is not an heir-at-law.

    Again, you really should sit down with an attorney that handles estate planning to assist you with setting up a plan to do what you wish. Things can get pretty complicated when dealing with a blended family.

  • Janet Lynch

    My husband and I both have wills and have named eachother as Executor if one of us survives the other. In the event of simultaneous death, can we name separate Executors or do they have to be the same?

  • Michell Bradie

    Each of you may name whomever you wish to act as executor, or alternate executor. The do not need to be the same people.

    I can tell by your questions that you are trying to prepare Wills yourself. I really don’t advise that. Your initial expense is higher going to an attorney to prepare your Wills, but it usually saves your estate a lot of money in the long run. I have been in practice over 25 years, and have probated less than 10 Wills that were prepared by online forms, or “do-it-yourself” kits that didn’t have something wrong. Most of the time we can fix the problems. However, it usually costs more to fix the problems in probate than it would have cost to prepare Wills through an attorney up front. Sometimes the problems with the document are too bad to be fixed, and they don’t have a Will at all. The problem is that we usually don’t know there is a problem until we are trying to probate the “Will”, which means that the person has died and it is too late to go back and fix it. Please, please do yourself and your loved ones a favor and have an attorney look over what you prepared. Don’t leave them with a document that you think is a Will, which turns out to either be invalid, or costs a lot more to probate.

  • Shelly Brunette

    my name is not on our marital home. what will happen if he dies before me?

  • Michell Bradie

    Assuming that you live in Texas, and that the home is being used as your primary residence and homestead, you will continue to have a homestead right in the house, whether you own any ownership interest or not. There are certain expenses that you will be required to pay, but no one will be able to force you out of the house, so long as those expenses are being paid.

    Even if your spouse leaves the property to someone else by hie Will, they will not be able to force you to move out.

    It is unclear from your question if you name is not on the deed, but it was acquired during marriage, or it was your spouse’s separate property before marriage and you are now living there as a married couple. If property is acquired during marriage, the presumption is that it is community property, regardless of how it is titled. If it really is community property, then you own a community interest in the house, whether you name is on the deed or not.

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