Your question asks “What if the will states…” which implies you are talking about having only one Will. If you have a “joint Will”, or one Will for both you and your spouse, you really need to prepare new Wills; one for each of you. With a joint Will, once the first spouse dies, you still need to admit the Will to probate, but then you cannot ever make any changes or additions to the previously admitted Will. This can cause real problems if people you name die and you can’t make any changes.

If you both have Wills, then your question seems to imply that you do not have any division of property until the second spouse dies. However, leaving all of your property to your spouse is one way of dividing up the estate. You could also leave all of your property (your separate property and your share of the community estate) to your best friend, for example. Nothing says you have to leave it to your spouse, if you don’t want to.

So let’s say you both have Wills that leave everything to each other, and in the event that both of you die, it passes down equally to your children. What needs to be done? When the first spouse dies, that spouse’s Will needs to be admitted to probate for the Judge to determine that it is a valid Will. When that is done, it passes all the property to the surviving spouse. Once that happens, then all of the property is owned by the surviving spouse, and their Will (the surviving spouse’s Will) then determines how the property will pass on their death. The surviving spouse may prepare a new Will after the death of their spouse, or keep the distribution the same.

Please let me know if this has not answered your question.