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.

123 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?

    Thanks!
    Skip
    skipsteller@cox.net

  • 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.

  • Monica

    Have you ever seen a situation where the husband has a will but not the wife? I’m currently dealing with this issue, and it seems very suspicious to me.

  • Michell Bradie

    Each person is responsible to prepare their own documents. Yes, both spouses SHOULD have their own Wills. Everyone over 18 years of age should have a Will. However, I have seen many situations where one spouse prepares a Will, but can’t convince their spouse to do the same. It is sad really. Having a Will benefits your loved ones, so not having one leaves them in a very difficult position.

    If the Will for one spouse was prepared by an attorney, and you suspect that the other spouse’s Will may have been taken or destroyed, you can check with the attorney’s office to see if both of them prepared Wills at the same time.

  • Harper

    I have been trying to get my husband to get a will done since the birth of our daughter but he doesn’t want to think about it! I was going to have one done for myself and in the event of our death my family would be granted guardianship of our minor daughter. My concern is if his family could contest the will since he wouldn’t have one done.

  • Grant

    My wife had 3 kids before we got married. We have 2 kids together for a total of 5. We have a disagreement over how to leave the estate. Her kids are very irresponsible and in / out of jail. I have worked hard all my life and the thought of leaving them my earnings makes my blood boil. Thus, we cannot agree on anything concerning the will. Can I leave my 50% to my two daughters to ensure they get taken care of?

  • Michell Bradie

    If wanting someone to do something enough made it so, then everyone would have a Will, since that is what I really want. Unfortunately, it doesn’t work that way. Preparing a Will is something that you do to ensure that your loved ones are taken care of with as little expense as possible. You are doing for their benefit, not just your own. Perhaps he doesn’t realize the cost and difficulties that will happen if he dies without a Will? Maybe if he sees you making one, and that nothing bad happens to you, he will feel more comfortable about the process? I would strongly recommend that you prepare one yourself to make sure that if you die, you can say how you want your property to pass and to look after your daughter. All you can do is hope that he makes one later. If he has no Will, and both of you pass, there could be a fight over custody, but at least you will have a Will that expresses your wishes for guardianship. The court will have to make a decision without his input if he has not prepared his own Will. Good luck.

  • Michell Bradie

    Under Texas law, you can leave your share of the community estate and all of your separate property to whomever you wish, including your children. If you own the house as separate property, and it you and your wife’s primary residence, you wife will still be able to claim her homestead right in the property, even though you might leave it to your children. I would recommend that you sit down with an attorney that handles estate planning to help discuss your different alternatives, so that you can make sure that your wife is taken care of, as well as your children. There are many different options to consider, and really is not something that you should try to handle yourself.

  • Bonnie

    I have a question If a husband and wife made wills and husband passed away , can a wife change his will? If not or how can I can I change mine so the 2 grandchildren gets the proceeds from sale of house when of certain age. I do not want my only child to put it in a joint account where her spose would get it and do not use it for childrens education They will spend it foolish. Please email me a answer all I have is a small house and small savings nothing else and we worked hard for it Thanks

  • Michell Bradie

    I received your question on our website and you requested that I respond to you by email. I sent you an email, but am also posting my response in case other folks should have the same question.

    I would first need to know if you and your husband prepared a joint Will, which is one Will for the two of you. If it is a joint Will, or a contractual Will, then once the first person dies, no changes can be made to the Will at all. That is the problem with joint Wills, and why our office never prepares them.

    If you and your husband each prepared your own Wills, then unless they were set up as contractual Wills, you are welcome to prepare a new Will and change it any way that you wish. You will not be able to change HIS Will, but you can change YOUR Will.

    If your husband left everything to you, for example, then it is yours to do with as you wish. If you want to leave it in trust to your grandchildren until they reach a certain age that is fine. You may also name the person that you would like to act as the Trustee, which doesn’t even have to be a family member if you prefer to name someone else.

    If you have prepared a joint Will, then there is nothing that you can do, unfortunately.

  • My mom n dad r in their mid 70s, decent health however my mom cannot get my dad to do a will. They have property they live at in Missouri. My question is if my mom does a will a he doesn’t n they both pass at same time will her will take presidense or will his half have to go thru probate. There is only my sister n I which don’t want stuff but just want it in place. Problem is dad wants to leave farm to one son n law and mom doesn’t agree with that. How should I direct her other than knowing they both should have their own wills anyway?

  • Michell Bradie

    I am licensed to practice law in Texas only, and am not familiar with the laws of Missouri. I am unable to answer a question about Missouri law.

    I believe that everyone 18 years of age and older should have a Will, since none of will ever get out of this world alive, and most of us will have some property to transfer when we die. So, yes, your father should prepare a Will. However, there is no way to make someone do something that they refuse to do. Ever hear the expression that you can lead a horse to water, but you can’t make him drink? I hope that he will come around, but all you and your mother can do is encourage him to get one prepared. Good luck with it.

  • Stephen Sailer

    Hi
    Both me and my wife are going to be going on vacation without our 3 minor kids. Neither of us have a will. If we should both pass away at the same time what would be the best kind of will to have to protect our children and pass our estate to them and provide guardianship?

  • Michell Bradie

    Obviously, you and your wife should go to an attorney and prepare Wills. The attorney will make sure that it takes care of the distribution you wish, including providing for guardianship and trusts for the children should you both die simultaneously.

    If you will leaving for vacation without sufficient time to prepare a formal Will with an attorney, I do recommend (assuming that you reside in Texas) that you at least prepare a holographic Will. It is not the best, and will cost quite a bit to probate, but it is certainly better than not having anything.

    It must be all in your handwriting (you can’t type it up and sign it), it must show that you intend to make a Will, it needs to be signed by you, and should be dated. Write out who you would like to take your property, and list alternate beneficiaries should both you and your wife die at the same time. You should also name someone that you trust to be guardian, trustee, and executor of your estate, as well as backups in the event any of these folks can’t or won’t serve.

    Again, I am not a big fan of holographic Wills, but they are good as a short-term stop-gap until you can get one properly prepared. Hope you have fun on your vacation!

  • Gibert Ramirez

    My understanding is that Texas is a community property state. Husband and wife have been married over 50 years. What options are available if one spouse disagrees with how property is divided upon death. I was reading previous posts about separate wills being a necessity. Does this mean that each spouse owns 50% of all assets including home,property, etc.?

  • Michell Bradie

    On death, it is assumed that all community property is owned 50/50 between spouses in Texas. Community property is generally any property acquired during marriage, except by gift, devise or descent. So, if there was property that was owned prior to marriage, that would not be considered community property.

    Each party can prepare a Will to transfer whatever separate property that the own, if any, as well as their share of the community property. You are correct that one spouse will NOT be able to control what the other spouse does with their own property. Both spouses could make separate Wills leaving their property one way, and then one spouse can change their Will the next day, if they wish to transfer their property a different way.

    If you have concerns that if you leave everything to your spouse, and then on your spouse’s death, they may leave it to folks you don’t want, then you should talk with an attorney regarding estate planning. That may include transferring your share of the estate to your spouse, in trust, and perhaps naming someone besides your spouse as trustee (so your spouse doesn’t drain the trust during their lifetime), and then have the remainder pass to named beneficiaries. On your death, at least your half becomes irrevocable, and your spouse can then transfer what they own as they wish. Again, this is not something that you would do yourself. You really need to talk with an attorney to have it properly handled and discuss all your options. Hope that helps!

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