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.

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

  • Michell Bradie

    Under Texas law, that is correct. You own your one half community interest in the property, and if the land is also your homestead, will have a spousal homestead right in the property as well. That means that if you are living there as your homestead, and paying the bills, his children will not be able to force the sale of the home while you are there. Blended families can be very complicated. It is especially important to have properly drafted Wills when there are children from a prior marriage or relationship.

  • Carole e

    What if I don’t have children but my husband does , how can I have my portion of the house go to my niece and nephew and my husbands portion can go to his child

  • Michell Bradie

    Assuming that the house is community property, and that you own half an interest in the house, you may leave your community share of the house to whomever you wish in your Last Will and Testament. Under Texas law, even if you owned 100% interest in your house as your sole and separate property, any spouse living in that house as their primary homestead will retain a homestead right in that house upon your death. That means that so long as they are paying what they need to, and living there as their homestead, your beneficiary will not be able to force them out of the house or force a sale of the house. So, assuming that you own half the house and leave your half to your niece and nephew by your Will, upon your death, your husband still has a right to live there, partly because he owns half of it, and also because he retains his homestead right in the whole house. Now, if he decides that he wants to move out and sell it, he will need your niece and nephew to agree to the sale, since he would only own his half of the house. If you have other questions in this regard, please give our office a call.

  • Debbie E

    I dated my husband for 10 years before marrying him. I sold my home in 2012 and my daughter and I moved in with him. We married in March of 2013. My husband now is about to sell his home so that we can move into his parents’ home. He is buying his parents’ home through his parents’ trust. He will close on the home at the end of the month. His family wishes to keep the home in the family and if not to be divided evenly between the 3 brothers. My husband and I keep everything separate. We have no bills or anything together down to health insurance. He has an individual plan and I have an individual plan plus child. The only thing we have financially together is our year end taxes which we file jointly but he keeps any return money because he pays for everything. I write him a monthly check of $1000.00 for rent and expenses and then I pay for all groceries and essentials for the house and my expenses for me and my child. My husband has no children of his own and in his will everything goes back to his family, brothers, nieces and nephews. In the event he should pass before me, does that mean my daughter and I are out?

  • Michell Bradie

    Debbie, if your husband purchases a house during marriage, and you do not have a separate property agreement (per-nuptial or post-nuptial agreement), the property is presumed to be community property. If he purchases the property with only his separate property, and both of you agree that it will be his separate property, or you gift your interest, it can become separate property. The issues of tracing, and increases on separate property becoming community property are a bit more involved than can be properly dealt with here. However, if you assume for the sake of argument that the house will be his separate property, if you are living in that house as your homestead at the time of his death, and you have not waived that homestead right with some type of separate property agreement, you continue to keep that homestead right. What that means is that as long as you pay what you are required to by law, his heirs or beneficiaries under his Will may not force a sale of the house or force you out of the property while you are living there as your homestead. As soon as you give up homestead rights, you lose any right to remain in the house. While this may allow you to remain in the house, it likely will cause there to be bad blood between you and your husband’s family. It sounds like you might need to sit down and have a frank discussion with your husband regarding what he is willing to do to make sure that you keep a roof over your head. If he wants to assure that the house ultimately goes to his family, he may always give you a life estate in the house in his Will, allowing you to live there until you die, and then have it pass to his family.

  • Bessie

    My step mom went to Australia for cancer treatment and while there wrote up a will and she died in Australia. Will stated husband could just live on property until he died then property was to be sold and split 5 ways. My dad wrote a will and left everything to my sister. Well I have lived on property for 10 years helping parents and mortgage owed is 12.000 and fixing to get foreclosed on. I tried to talk to step brothers and sister which 1 lives in England 1 lives in Australia and 1 lives in Dallas I offered them 5,000 a piece to buy them out and they said no They want me to get survey. appraisel and an attorney and sell property I do not have money to do that. Can I stay on property and pay mortgage to prevent foreclosure. What can they do to me legally? Do I have to probate wills.

  • Michell Bradie

    The first question is who owned the property? If it was acquired during marriage, then it is presumed to be community property. If your step-mom owned half and your father owned half, then your step-mom’s Will only controls her half of the real property. Yes, her Will would have to be probated so that the judge could make the determination whether or not it was a valid Will. If so, her half of the property would be sold (only after your father no longer lives there, since he has a homestead right in Texas, whether he owns an interest or not), and the proceeds divided to the 5 folks she left it to.

    It is unclear if your father has died, but you give the impression that he has. If his Will is valid, and it does need to be probated, then only his interest in the property will pass to your sister.

    The mortgage company doesn’t care who pays the mortgage, and if it is paid current with any penalties, that should prevent foreclosure. However, just because you have been living there and helping your parents doesn’t mean you get to stay there. You might possibly have a claim for some reimbursement, but that would also be offset by what one would ordinarily pay for rent staying in the house. That is a little too complicated for discussion here.

    After both Wills have been probated, if all the beneficiaries want to sell it to you, they can. However, you can’t make them sell to you, and everyone would have to agree on a price. Since you are not an owner of the house, but maybe entitled to a portion of the proceeds of the sale, you can be evicted from the house. It is certainly not an easy situation for you, but trying to reach an agreement with your siblings may be in everyone’s best interest.

  • Irene

    My mother just passed in November and had a will that she drew up with my sister in 2007. The will states that the the house she “owns on… goes to my sister. At the time the will was drawn up there was no mention of her being married or that the house was community property. (We live in Texas) She was married to my father for over 60 years and the city has both my father’s name and my mother’s name on the deed. When my mother passed, my sister took the will to her lawyer and got it probated with her as the executor. My question is the will did not state that the house was community property because she was married and was married til her death Is her will valid and if it is even though the will was probated as it read does my grandfather still have his 50% of the home?
    Thank you.

  • Michell Bradie

    Your mother ca n only transfer the interest that she owns. If she only owns half the house, then her Will may pass her half only to your sister. You stated that the deed lists both your mother and your father as owners, and that your mother was married (presumable to your father) until she died. If that is the case, then your father would still own his half. I am not sure where your grandfather comes into play…

  • daphne ledford

    If husband and wife both die but husband has kids from a previous marriage, who is intitled to the wifes half of joint assets.

  • John

    My dad and step mom own a house and land together. My step mom died Oct 2008. Her will left her half of community property to her son (my step brother). dad had survivorship right to stay in the home. Her son threatened my dad trying to get him to move and sell. My dad went to an attorney and filed for a restraining order. The lawyer recorded threatening phone calls from her son. The courts could never catch him to be served. My dad was 83 and scared for his life. He finally left his home out of fear and stayed with some friends in late 2009. In dec 2009 my dad gave my step brother a pretty big check for repairs that needed to be done to the house. The money came from the house insurance claim from storm damage. My step brother never did any of the repairs, he kept the money. While my dad lived at his friends my step brother stole everything from the house in the summer of 2010 and he Continued to send threatening emails and left more messages that were recorded. My step brother finally probated his moms will in 2010. My dad continued to pay the notes, taxes and insurance until he died in February 2013. Upon his death I took over the payments. In the spring of 2014 the house was in foreclosure. In the summer of 2014 I had a chance to reinstate the house so I called my step brother to get him to help reinstate the contract on the house and pay the taxes. He said he was not interested . I paid it up to date. In dec 2014 he signed his part of the house over to another family member and walked away not ever paying a dime. I had no idea he did this. I started the process of probate but I’m concerned I might need an attorney who really specializes in probate. How does it work when the house has already had all of its contents removed by the step son even before he went to probate. My dad has nothing to show for 25 hrs of marriage. In 2010 he got his own apartment and had to pay extremely high rent until the day he died. He also had to purchase all new household items because the step son took everything in 2010 and he even acknowledges that he took it in a email to my dad. Is my step brother liable for half of the house payments, taxes and insurance back to when his mom died. Also what will happen with the missing contents can my dad get any money for them out of her half of the house. Does it mean anything that I called him to ask for help in 2014 and he said he want interested. Over the years I documented and recorded as much as possible. I have quite a bit of proof about this estate. We are filling for probate now. I might need an attorney who strictly specializes in probate. Im worried about my step moms family getting away with everything and it is not right. My dad was 83. No one should have there end of life years be as difficult as his was. Please help.

  • John

    I forgot to mention that my step brother went to an attorney in 2014. They drew up a general warranty deed giving his interest to another family member. My dad was the only one in the original contract for sale. There was no deed of trust. The loan was just paid off in feb 2015 I received the warranty deed from the original lender in the mail. It only has my dads name on it. What will happen when I record this in the county clerks office. Right now the last recoding looks like my dad gave his property to his step children’s family. It is recovered saying grantor is my dad and grantee is the step family.

  • Michell Bradie

    Thank you for giving me a call this morning. The facts of your particular situation were really too involved to properly cover in a blog post. I hope that you have a much better idea of what you can and can’t do after we talked. Good luck with it!

  • Michell Bradie

    Daphne, you have not provided enough information for me to answer. Did either husband or wife have Wills? If so, then their Wills should control who takes their share of the estate. Who died first, or did they both die at the same time? Assuming that there is no Will, the property would pass according to the laws of Intestacy. Please take a look at our website for how property passes by the laws of intestacy.

    Generally, in Texas if a person dies without a Will and does not have children in a blended family situation, the surviving spouse will probably own property with their deceased spouse’s parents. If one or both parents are dead, then it would go down to siblings, then nieces and nephews, etc. If there are no siblings, then you look to aunts and uncles, and then down to cousins. If there are none, then they go up to the line of the grandparents and work their way down. Only if no one can be found will it escheat to the state of Texas. It can get pretty complex when you don’t have a Will… and VERY EXPENSIVE!

  • Evelio Suarez

    Hello, my parents have been married for a little over 30 yrs they bought 2 property’s which were both paid off for 1st was purchased in 1987 and the other in 2000 both properties were under both there names. In 2010 they decided to make a will and testament independently. But, both of the wills say the same exact thing. So, my mother passed away 1st in November 2012. In July, 2014 my dad gets married to some lady that just came from another country then he passes away in January ,2015 so they were only married about 6 months and now she says that she owns everything and I can’t touch anything? I don’t understand how this works if both of the property’s were purchased way before they met she never put a dollar in the house and now she’s entitled to everything. I’m so confused !!! I’m in Miami,fl by the way

  • Michell Bradie

    When your mother died, her property transferred according to the terms of her Will. You told me that your parents’ Wills said exactly the same thing, but did not say what the distribution was. I am assuming that your mother’s Will left everything to your father. If so, when she died, your father owned everything. Then your father remarried, and it is unknown if he prepared a new Will after marriage. If he did, and he left everything to his new wife, then she is correct that she gets everything. If your father did not prepare a new Will, then you may have a different story. His new wife might be able to claim her intestate share of the estate, and a portion may pass to the alternate beneficiaries named in his Will, which could be his children. If she has filed a Will for probate, you can get a copy of the Will through the county clerk’s office in the county were your father resided at the time of death.

    When someone owns property, under Texas law, they can leave that property to whomever they wish. They don’t have to leave it to their children, or even their spouse. They could leave all of their separate property and their share of the community estate (if any) to a friend, charity, or anyone they wish. If your mother gave it to your father by her Will, he then owned 100% of the property. He could give it to a girlfriend, a new wife, his kids, or anyone that he wanted. Again, while it may not seem fair, that is something that he can do legally. Try to get a copy of the Will if one has been filed for probate to make sure what she is telling you is correct.

  • Evelio Suarez

    Both of the wills say that everything goes to me accounts,property’s , debts, everything . My father did not make a new will. Also everything is still under both of there names. Thank you for your quick response.

    I also forgot I have the originals and the copy’s of the wills.

  • Michell Bradie

    If everything is under both their names, that means that your father never probated your mother’s Will. You will need the original Wills to file with the court.

    You said that both of the Wills say that everything goes to you. While that certainly is possible, are you sure that it is not saying everything goes to you in the event that the other spouse has predeceased? Wills generally name the surviving spouse first when you don’t have a blended family. So, if your mother’s Will said everything passes to your father, and if he should predecease it passes to you (which is what I suspect), then you have to focus on what the situation was ON THE DATE OF YOUR MOTHER’S DEATH. If your father was alive when your mother died, and that is how her Will was set up, then the property passes to your father. It doesn’t matter that your father is dead now, as long as he was alive when your mother died.

    So if we assume that you mother left everything to your father, since he survived her, then when her Will is filed for probate, it will pass 100% of the property to your father. Until her Will is filed for probate, nothing passes, unless by beneficiary designation or payable on death account. So once your father owns 100% of the property, then his Will controls when he dies. If he named your mother as primary beneficiary, and you as the alternate beneficiary, and your mother predeceased your father, then all would pass to you by his Will IF YOUR FATHER NEVER REMARRIED. However, you said your father married this new wife, and never changed his Will. Under Texas law, his new spouse would be able to claim either her intestate share of the estate, or a family allowance. Again, you can take a look at our website to see what the new wife’s share would be under the laws of intestacy in the state of Texas.

    If my understanding of how the Wills were probably written are true, then you should be entitled to your father’s property, less what his new wife would be entitled to under intestacy. Both your mother’s and your father’s Wills will need to be filed for probate to handle that.

    The debts do not “pass” to beneficiaries under the Will. With the exception of a mortgage (unless specifically provided for in the Will), all the debts are to be paid out of the assets of the estate before anything passes to the beneficiaries under the Will, or to heirs under the laws of intestacy. If an estate was insolvent, it may mean that the beneficiaries get nothing, but they are not responsible for the debts of their parents, unless they signed a personal guarantee.

    Hope that helps!

  • If a person dies and they only relatives they have is neices and nephews, do the estate go to them and not inlaws?

  • Michell Bradie

    If a person dies without a Will, their estate passes by the laws of intestacy in their state. You can look at out website for the laws of intestacy in Texas at http://bradie-law.com/practice-areas/wills/intestate-distribution/.

    It may very well pass to distant nieces and nephews, but will never pass to in-laws, since heirs at law are by birth and adoption (at least in Texas), but not by marriage. The only way an in-law can take property under Texas law is if it is left to them in someone’s Will.

    Now, if it passes to a blood relative who survives the deceased, and then that blood relative dies leaving their property to their spouse, then the property could ultimately pass to an in-law, but not as a direct result of inheritance from the deceased. Hope that helps!

  • Sue

    My husband and I married in 2003. In 2006, my husband bought land with a poultry farm from his mother on a note payable monthly. His mother wanted the term “as his separate property” on the documents. We recently had separate wills drawn up leaving each other everything except for life insurance policies left to his daughter and my son. His mother just gave him a copy of her will which states that she is leaving the remaining portion of the property he is paying the note on to her granddaughter, his daughter, if he predeceases her. We have been paying the monthly note for said property out of a joint checking account. My question is, what happens to the property if he dies before his mother? Will his daughter get part of the property or will I have to pay her for the part that is left owed?

  • Michell Bradie

    If your husband purchased property during the marriage, it is presumed to be community property. Unless you signed on something saying that it was his sole and separate property, which might raise an issue as to whether you gifted him your interest , it would still be community property regardless of what his mother wrote on the documents. This is especially true if he paid for the property with community property funds.

    It is unclear how the sale was set up, but I am assuming it may be a contract for deed, so that the title is not transferred to your son until the final payment is made. If so, and your husband dies prior to making the final payment and getting title transferred, his estate still holds the right to get the title if the rest of the payments are timely made. So, if his Will leaves everything to you, and you continue to make the required payments timely, when the final payment is made, the property should be transferred into your husband’s name, which will then be transferred into your name as a beneficiary under the Will.

    If your husband dies, and you continue to make payments to your mother-in-law, and then she dies, the right to receive those payments may ultimately pass to your husband’s daughter under the grandmother’s Will. However, as long as the payments are not in default, your husband’s daughter can only inherit the right to the property that the grandmother has, which in this case sounds like it is subject to a contract for deed.

  • Leslie

    My husband has a son from a previous marriage that he’s been estranged from for most of his life. I have no children. My husband purchased a small lot of land when he was single. We have wills leaving everything to each other, but his doesn’t specifically itemize that lot of land. When the wills were drawn up (many years ago) the lawyer had him state that he had a son named __first name__. He said that would acknowledge the fact that the son wasn’t inadvertently forgotten. But the son is not specifically disinherited. Will this cover the bases, or do we need to update the wills and specifically mention that lot of land as being left to me. And/or specifically disinheriting the son. He also has an added clause that anyone contesting the will will receive nothing. I just don’t want conflicts popping up if my husband passes away before me. We’re in Texas. Thank you.

  • mariane

    is it possible that that separate wills of spouses should be probated separately?

  • Michell Bradie

    If your husband’s Will leaves “everything” to you, that should also include that lot. So, unless you just would feel more comfortable mentioning the separate property lot as going to you, that should be fine. The attorney was correct in acknowledging that existence of a child. While you do not need to specifically use the term “disinherit” to disinherit a child, our office prefers to put it in terms of leaving them “best wishes, but none of my property”. Depending upon how the rest of the Will is structured, there is a possibility that the estranged son might take as a residuary beneficiary if you have not named alternate beneficiaries and you predecease your husband. However, it sounds like you got some good advise from your attorney, so he probably dealt with that issue as well. If not, give him a call. Most attorneys gladly answer their clients’ questions regarding the effect of their estate planning documents at no charge.

  • Michell Bradie

    Each spouse should have their own separate Will, and you can only probate one Will at a time in the courts in Texas. If both husband and wife die in a mutual accident, for example, both Wills can be filed at the same time, but the court will put the probate of each Will under its own cause number or docket number. The Judge may set the hearing for both cases at the same time, but they are still two separate probate cases. Each Will needs to be proven up separately. Does that answer your question?

  • Leslie

    Thank you, Michell. The original attorney has passed away. We did name successor representatives and beneficiaries, but they were our parents, who are also now deceased. So it sounds like we need to update that part.

  • Michell Bradie

    Yes, if your alternate beneficiaries have passed away, it is time for you to update your documents. Please don’t forget to make sure that your Medical Powers of Attorney and Statutory Durable Powers of Attorney (for financial matters) are up to date as well, and confirm that your beneficiary designations are updated as well.

  • Leslie

    Do you think my husband needs to quit claim the lot from himself to himself and me to get my name on it, or is that not really necessary? Thank you so much for having this forum. It’s relieved a lot of my stress in a very stressful time. You’re very generous to spend so much time answering questions.

  • Michell Bradie

    Since property acquired during marriage is presumed to be community property, ordinarily I would say that it is not worth the time and expense. However, since his mother made a notation about it being his separate property, it may actually be helpful to just clear that issue up with your husband “gifting” a 50% interest in the property to you, so that it is absolutely clear that it is still owned 50/50.

    Understand, his mother could have gifted him property as his sole and separate property, and it would have remained separate. However, selling property to someone while they are married, and using community funds to purchase and pay off the property makes it community property. Since someone looking at the deed might just see his name on it, it could be sufficient to raise the issue of whether it was separate or community, there could be costs associated with trying to clear that issue up. So if your husband is willing to just executed a deed transferring half the interest in the property to you, so that you both hold the property equally as tenants in common, that would probably make life easier in the long run.

    It is always nice to hear that the information we post is helpful to folks. That is why we do it. :) You are quite welcome.

  • Sue

    Michell, thank you so much for answering my question. My husband has always had the attitude that what is his is also mine and he doesn’t understand why his mother wanted it to be listed as his separate property. She also put in her will that upon her death the note would be forgiven and the property would be deeded to him. So, if I’m understanding you correctly, as long as the payments are made then everything should be ok. If his mom passes away and the property is then gifted to him and being that his will leaves everything to me, would that tie up any loose ends or would it be better for him to deed half the interest in the property to me as you state in an earlier post?

  • Leslie

    Michell, I hate to bother you again, but my last question was regarding a lot my husband purchased while single, in his name only. We’ve left everything to each other in our wills, he has a son from previous marriage he’s estranged from. We’re wondering if he needs to quit claim the empty lot from himself to both of us, add my name another way or not worry about it. Thanks again. (I think you confused me with another previous question.)

  • Michell Bradie

    Leslie, you are correct that I had you confused with another post. Sorry! As long as your husband specifically acknowledges and disinherits his son and the Will leaves everything to you, there would be no benefit to quit-claiming an interest to you now, unless you just want to be a part owner during your husband’s lifetime. All that would do is make half the property yours now. The other half of the lot would still transfer to you by his Will on your husband’s death. And I never consider posts to the firm’s blogs a “bother”. Hope that helps! :)

  • Michell Bradie

    If your husband survives his mother, or pays the note off completely, and the property becomes his completely, then his interest will pass by his Will. In that situation, if your husband then dies, Sue, and he leaves everything to you, then there is no issue that it will be yours should you survive him. The problem that comes into play is that you have a blended family. He has a daughter, and you have a son. If both you and your husband die together, who gets the property?

    If it is community property (in Texas), then you own half and your husband owns half. Your husband’s Will states where his half goes in the event that you predecease him or die simultaneously (or at least it should!) Likewise, your Will transfers the half you own in the event that your husband should predecease you or die simultaneously. He may leave his half to his daughter if you have already died, and you may leave your half to your son if your husband has already died. Since this is property that was acquired during marriage, and paid for out of community funds, you really don’t want there to be any question that it is community property so that you have a say in what happens with your half. In this situation, if you both die together, then each of your respective children would inherit your half that you owned.

    But what if there was some confusion about whether it was separate property or community property? You husband’s daughter might think that she was entitled to 100% of the property from her father. Your son might argue that it really is community property, and he should be entitled to half of it. You could have your children wind up in litigation trying to sort that out. It is much easier to sort that out now while both you and your husband are alive.

    I don’t have a crystal ball, so I don’t know what will happen in the future. But as an attorney, we always try to look at the worst case scenario and try to plan for that.

  • Sue

    You have been a tremendous help in deciding what our next step should be. I agree that it is unfair to leave our children to sort this out in the event of our deaths. Thankfully, my husband agrees and will get the deed transferring half the interest to me. If we happen to pass away at the same time, our estate will be split 50/50 between the two children and if either is not agreeable to that decision then he or she will receive nothing. Thank you so much, Michell, for taking the time to answer my questions and I’m grateful that I found this website/forum!

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