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.


  1. 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.

  2. 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.

  3. 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.

  4. 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?


  5. 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.

  6. 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?

  7. 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.

  8. Shelly Brunette

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

  9. 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.

  10. 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.

  11. 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.

  12. 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.

  13. 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?

  14. 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.

  15. 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.

  16. 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

  17. 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.

  18. Terri Hennis

    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?

  19. 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.

  20. Stephen Sailer

    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?

  21. 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!

  22. 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.?

  23. 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!

  24. Carter

    My mom has some unclaimed property. I am her only child. She passed away and did not have a will. Does that property go directly to me or my father? My father also passed away but he had a will. Would I need to still fill out an affidavit of heirship?

  25. Julie Ryan

    Looking over important papers for our elderly parents and Mom showed me their will. My Dad is the only signature… stating if he dies he wills everything to my Mom… the next sentence was if they would die simultaneously everything would be given to us kids, but nothing was mentioned if they didn’t die simultaneously… thinking Mom would have to write a new will then? Am I correct in thinking this? This was dated 1971.

  26. Michell Bradie

    Since your mother did not have a Will, her property would pass by the laws of intestacy. You can look on our website to see what the distribution would be, since it depends on if she had any children from a prior marriage, if it is separate property or community property, and if it is real property or personal property. You may be entitled to a portion of it. What was supposed to pass to your father by intestacy, assuming that he survived your mother, would pass according to his Will.

  27. Michell Bradie

    First, you said “their Will”, which implies that it is a joint Will. If that is the case, they should absolutely prepare new Wills. Both husband and wife should have their own Wills. You can only transfer in your Will what you own. So your father can only transfer his share of the community estate, and any separate property that he owns by his Will. Your mother’s Will can only transfer her separate property, if any, and her share of the community estate.

    Most Wills in Texas require that it be signed by the testator (the person making the Will) as well as two (2) disinterested witnesses. The one exception to that is if it is a “holographic” Will. In order to be a holographic Will, it must be ALL in your father’s handwriting (nothing typed), showing that he intended it to be his Will, and be signed by the testator. It does not have to be notarized. So, if it is a typed document that was only signed by your father, then it is NOT a Will.

    I am assuming that it was a “homegrown” Will or a Will form that he used, since an estate and probate attorney would have made the distribution clear in the event that your mother predeceased your father, or died simultaneously.

    In my over 25 years of practice, I have found less than 10 homegrown Wills or Will forms that haven’t had something wrong with them. Most of the time we can fix the mistakes, but sometimes they are so bad that we can’t and the person dies intestate. Usually the cost that it takes to fix the problem in probate is more than it would have cost if it had been prepared by an attorney up front. Most folks find that DIY (do it yourself) Wills are very costly when you try to probate them. It is much, much less expensive to have an attorney properly prepare your Will initially.

    So, to answer your question, it sounds like both your mother and your father should go to an estate and probate attorney and have proper Wills prepared for each of them. If they have not done so, they should also prepare, at a minimum, both medical and financial powers of attorney as well, so someone can make decisions for them when if they become incapable of making them themselves. Hope that helps!

  28. Julie Ryan

    Thank you for responding… this will was prepared by an attorney in 1971. I guess I should not have said their will… It is the will of my father. “In the event that my wife shall predecease me, or in the event that my wife and I shall die simultaneously, I give, devise and bequeath all the rest, remainder and residue of my property, either real, personal, or mixed, and wheresoever situated, to my surviving children in equal shares. ” so that’s the clause that concerns me… doesn’t say anything about when Mom passes… Dad only signed the will not Mom… It was his will… Mom is the executrix…We live in Wisconsin… thank you for your help… Their funds are limited and if We don’t have to get another will done that would be great…

  29. Michell Bradie

    Julie, the Will for your father only passes property that is owned by your father. The will provides for the eventuality that your mother should survive him (she would take under the Will), and if she should predecease him or die simultaneously (it will pass to the kids). Once property passes to your mother, it is hers and the distribution for her property is controlled by her own Will. If your mother has not prepared her own Will, she needs to. I am not licensed in to practice law in Wisconsin, so you really need to speak with an attorney in that state. Yes, it will cost some money to prepare her Will, but generally dying without a Will is much, much more expensive. It is well worth the cost to have it properly drafted by an attorney than for your mother to try to do it herself. If there is an error, you usually don’t find that out until you try to probate the “homegrown Will”, and by that time the person has died and it is too late to fix it. The work that the attorney has to do to fix it, if it is even possible, is usually more expensive than it would have been to properly prepare a Will in the first place with an attorney. What is that old expression? “Penny wise, pound foolish.”

  30. Chris

    I have quick wife does not get along with my kids from a previous marriage. I know if something happens to me i know they wont get a anything personal,money or how do i go about just getting a will just for me,so that doesnt happen..i need them to be protected.

  31. Michell Bradie

    You may prepare a Will to transfer any property that you own however you wish. You own your share of the community property (presumed to be 50% on death), and may also own separate property if it was owned prior to marriage or by gift, devise or descent. Your wife owns the other half of the community property, and may also own separate property. So your Will can give your separate and your share of the community property to your children on death. If there is homestead, your wife will still have a homestead right in Texas regardless of whether she owns an interest in the property or not, meaning that your children will not be able to force a sale of the property while she is living there and paying what she is supposed to to continue her homestead rights. Alternatively, you can leave separate property to your children, and your share of the community property to your wife. You may also be able to set up a trust for your wife to get the benefit of the property during her lifetime, but on her death, it can pass to your children. Since there are so many different alternatives, you are strongly advised to sit down with an estate planning attorney to discuss what would be best in your personal situation to accomplish your goals. Wills are not “cookie cutter” documents where one size fits all. Each person’s estate is different, and the Will or Trust should be prepared to accomplish your particular goals. This is not something that you should try to prepare yourself.

  32. Penny

    Me and my husband both have each 1child from previous marraiges. Am i allowed to have my own will, in order for my child to inherrit from me? We are married in commune of property. He had a property in his name, before we got i allowed to in event of death, to let my 50% go to him?and all i want him to make sure there will be no unfairness.

  33. Carl

    First, what a nice gesture of you to answer questions. My spouse and I created individual wills in the event we pass together, such as in a car accident; we live in a Common Law state. I believe we can include language in our will to determine who passes first in an event if it is not obvious. Thus, different beneficiaries receive different marital assets depending on which one of us passes first.

    If one of us clearly passes before the other, then via joint ownership it seems the surviving spouse gets everything.

    What happens if I write checks from our joint bank accounts to whom I please. After I pass, is there a possibility those recipients will be required to return the funds? I understand in a divorce situation such an action is ill-advised, if not illegal.

    Lastly, suppose I deplete my Traditional 401k (I’m under 59 1/2), and give under $14,000 to various people. Who pays the 10% penalty and taxes?

  34. Michell Bradie

    Each spouse should have their own Wills. Your Will can only transfer the property that you own, being your separate property, if any, and your share of the community estate. Under Texas law, you may leave your property to whomever you wish. You can disinherit children if you wish, and you are not required to leave any of your property to your spouse if you don’t want to. This may be different in different states so if you do not live in Texas, you should speak with an attorney in your state that handles Wills and Probate. Also, in Texas, even if you leave your interest in homestead property to your children, and even if it was your separate property, your spouse still has a homestead right in that property and may continue to live there so long as they pay what they are required to. The only way around that is if the parties have waived a homestead right by some type of pre-nuptial or post-nuptial agreement.

  35. Michell Bradie

    Not all common law states have the same laws. I am only licensed in Texas, and am not able to advise regarding the laws of any other state. I would strongly recommend that you speak with an attorney in your state regarding what your state laws allow.

  36. Margarita G. Torres

    My husband and I have just made a will. One for him and one for me. I am a litle bit confused. The lawyer said I needed to leave everything to my husband on the will such as property. He would do the same. I wanted to make my son as executor of the estate on my will since my husband would not know what to do. I would specify that when I die, I would want him to sell the how and divide assets from house sale to my 2 children. Is this possible. The lawyer states that it would be an illegal will. I am totally disappointed because of what she said. Could you verify this for me. Thank you.

  37. Michell Bradie

    The laws of each state are different, but in Texas, you can leave your property to whomever you wish, and can disinherit whomever you wish. Your Will transfers your separate property, if any, and your share of the community estate (if married) to the person you wish to leave it to. You DO NOT need to leave it to your spouse. It is NOT illegal in Texas to leave all of your property to your children, or name your children as your executor(s).

    However, if you are married, any homestead real property is subject to the spousal homestead right. This is true even if you own the residential homestead as your separate property and wish to leave 100% of it to your children. You will may transfer ownership to your children (or whomever you wish to name as the beneficiary), but it will be transferred subject to your spouse’s homestead interest.

    Texas does not want kids to sell the home of a deceased parent, forcing the surviving spouse out onto the streets. So, by law, surviving spouses are given a “homestead right” in the homestead real property, even if they don’t own the property. Again, it only applies to the homestead, and not any other real property. So long as the surviving spouse wishes to live on that property, and pays what they are legally required to pay, they have the legal right to remain in the house and the kids or other beneficiaries can’t force a sale.

    Understand that the applies ONLY TO HOMESTEAD real property, so if there is other non-homestead real property, the beneficiaries may have the right to sell it if they own all of it. If the other real property is partially owned by the other spouse, then they may need to move to partition the property to sell it.

    Once the surviving spouse moves out of the home and no longer uses it as his or her primary residence, then the property can be sold, or if necessary, partitioned and sold.

    If you are in Texas, I would suggest that you speak with another attorney.

  38. Cheryl

    My mom & dad were married for 56 years years. They both had wills. They left everything to me & my brother. Mom died and dad remarried but still has old will from first marriage. Dad has now passed away. He was only married to the new spouse for 9 months. Is the will still valid?

  39. Michell Bradie

    In Texas, your Will can only transfer what you own, which is any separate property that you may have, and your share of the community estate if you are married. If your mother’s Will left everything to your and your brother, then you and your brother are legally entitled to what she owned at the time of her death whey you probate her Will. However, if her Will left everything to your father, and then to you and your brother should your father predecease her or die simultaneously, then upon her death, she transfers all of her property to your father, and he owns 100%.

    When someone prepares a Will before marriage, and then fails to update or amend their Will to provide for their new spouse, you are dealing with an “omitted” or “pretermitted” spouse. The law generally presumes that the deceased intended to provide for their new spouse, so under the omitted spouse doctrine, or pretermitted spouse doctrine, it generally allows the omitted surviving spouse to take an intestate share under the will. Please refer to how property passes by intestacy on this site. The rest of the property will pass according to your father’s Will.

  40. Vicki Cockerham

    My mom bought a house in Missouri and paid cash for the house with her 401K retirement account. She has been married (20+years) and the information logged with the county -has her name and his name on the house. They divorced and stayed living in the house and they both knew she paid for the house and when he died it would go to her as stated in their will. Well, A month before he died 4/2017, he had another will drawn up and gave his portion of the house to his 4 kids. He passed away 5/9/17. The kids are coming in town on Friday, 5/19/17 to spread his ashes in the lake and want in the house by themselves, What can we do? Can we get the kids to sign a waiver on their portion that was willed to them so my mom can keep her house? He was not getting enough oxygen and wasnt making any sense can he be declared inmcopient?

  41. Michell Bradie

    I am not licensed to practice in Missouri, so am not able to advise regarding the laws of that state. I am only licensed to practice law in Texas. The laws of each state are different, so you should contact an attorney in that jurisdiction that can assist you. Best of luck with your situation.

  42. Ashley T. Jones

    Hi I have a question. If a married couple had a will, the husband passes, wife makes new will, but husband had in his will if he passed, his property would be split between his children, but he passed 15 years before the wife, so she stayed living at the property, made a new will that her (previously their) property would niw go to her son in law when she passes, she now passes, but lawyer is bringing up the husband’s old will saying property goes to his children, going by husband’s will. my question is, since the wife made a new will about who the property will go to, is the husband’s will void now? How does that work? The lawyer keeps pulling up old wills of passed people, instead of following the newer will that was made by the wife. Instead of giving the property to the son in law, the lawyer is trying to get son in law to sign out of owning the property, so the lawyer can split the property as said in husband’s will. I’m confused?

  43. Michell Bradie

    When you said that the married couple “had a will”, it sounds like you might have been dealing with a “Joint Will”. A Joint Will is where the couple draft only one Will for both of them, and it is contractual in nature. If that is the case, then once the first person dies, the Will is locked in and can never be changed in any way.

    The benefit of having a Joint Will is that you don’t have to worry about your spouse making any changes to it after death.

    The drawback of having a Joint Will is that your spouse is unable to make any changes after your death.

    I am not a fan of Joint Wills at all, since once the first spouse dies, no changes can ever be make. That includes not being able to adding additional Executors, Trustees, or Guardians, if no one can serve down the road. That includes not being able to add any alternate beneficiaries should all your beneficiaries predecease you. That means not being able to do any tax planning if your spouse receives a large sum of money, say from an accident or inheritance. That means that you can’t put funds into a Special Needs Trust if a beneficiary later becomes dependent upon government assistance.

  44. Paula

    Okay my mother passed away leaving her two children behind. She was married for ten years to her husband he is not saying a thing about my mothers money assets anything ?? I’m frustrated I can’t believe my mother would not want her own children to get anything ? Do we have any rights here against her husband I do not feel he deserves everything she had ? I am confused and should I ask to see the will ? What about all the money she accumulated before their marriage this doesn’t seem right at all.

  45. Michell Bradie

    If your mother left a valid Will, then she could transfer her property (separate property, if any, and her half of the community estate) to whomever she wishes. She could leave some or all of it to her husband, or to her children, and can also disinherit children if she wishes under Texas Law. If she died without a Will in Texas, then her property would pass according to our laws of intestacy. You can take a look on our website regarding the distribution when someone dies intestate. It is always better, and less expensive, to prepare a valid Will, and it is the only way to ensure that your property passes they way you wish, rather than the state’s default distribution.

  46. shari Prouhet

    My husband and I do not agree about how what should be left to whom in our wills and he is not very forthcoming about what we actually have as assets. I do know of a joint Schwab account and the amount. But I also know he has a SEP account and the amount and a 401K account and the current amount. Are those considered community property as well? Or is the amount accumulated since the marriage and put into those accounts community property?

    Thank you

  47. shari Prouhet

    An additional question regarding an inquiry on April 24 where you answered that if two spouses die at the same time both wills will be probated seperately. My question is what if the two wills are really different. How do the courts decide which will to go by or how to join the wills?

    Thank you,

  48. Michell Bradie

    Property that is acquired during marriage, except by gift, devise or descent, is presumed to be community property. Also, increases in separate property become community property, unless there is some type of pre- or post-nuptial agreement that states otherwise.

    So, with a retirement account, generally, amounts put in after a marriage, become community property. With a 401k, it is governed by federal law which says that it passes to a spouse unless the spouse signs a valid waiver of rights. So, assuming that you have not waived any rights in the 401k, you should automatically have an interest in that. That is not the same with IRAs and other investment accounts.

    Each of you should have your own Will, since you can only control what you own, which is your separate property (if any) and your share of the community estate. Your Will does not need to mirror your husband’s Will. When you hold property in non-probate assets, like bank accounts, insurance, investments, etc., then the person that is the title holder or listed as the “owner” of that property can usually pick who they want to name as the beneficiary or alternate beneficiaries. Even though you may have a community property interest in the property held, it may be considered as “sole managemetn community property”, and the decision making of that particular asset may be controlled by just one person. If there is disagreement, you should have a frank discussion about it, since it may determine how you change the distributions that you set up in your Will or in other areas of non-probate assets that you are considering. Hope that helps!

  49. Michell Bradie

    If both spouses die at the same time, then the court will probate each Will treating the other spouse as if they had already predeceased the decedent. That way, you will not have one estate passing through the other. So, if both Wills had to property passing to spouses first, then Husband’s Will had property passing alternatively to A, B and C, and Wife’s Will had property passing to D, E, and F, the court would treat both Husband and Wife, in both probates, as if they both died before the other. Husband’s separate property, if any, and his share of the community estate (after all debts and costs of administration were paid) will be transferred equally to A, B and C. Wife’s separate property, if any, and her share of the community estate (after all debts and costs of administration were paid) will be transferred equally to D, E, and F.

  50. Christy

    My mother passed months ago I’m the executor and only child her husband has not allowed me inside our home to her jewelry nor mail is he going to get by with taking” my mother(families heirlooms)

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