Personal circumstances may not be addressed in a form will, such as situations where there are children by a prior marriage. If you are married and have children by a prior marriage [or boyfriend] and you die first leaving your estate to your surviving spouse there is a risk that upon the death of the surviving spouse your remaining property would go to his or her estate heirs or beneficiaries to the exclusion of your children [i.e. your step kids could get your great aunt’s engagement ring]. Typically we would use a trust for the surviving spouse with a provision that upon his or her death the trust assets would go to your children [his kids get his stuff and your kids get your stuff].
Isn’t it enough if you and your spouse own a joint bank account?
Certain assets do not pass under your will but rather go to a named beneficiary. Examples include: bank and brokerage accounts held by two or more people as joint tenants with rights of survivorship; pay on death accounts; life insurance policies with named beneficiaries along with retirement accounts that have beneficiary designations (IRAs, 401(k)s, 403(b)s and the like). However, you still need a will to address other assets, notably real estate.
What’s the most common mistake in wills people draft for themselves?
Common mistakes include the failure to have the will properly witnessed and executed. The witnesses must sign in the presence of the person making the will and in each other’s presence [everyone signing the will needs to be in the same room at the same time]. A witness cannot be a beneficiary under the will [i.e. do not ask your kid to witness your will- unless he was really bad as a teenager]. As mentioned above, sometimes people fail to designate an executor as independent, or sometimes fail to designate an executor at all [no one knows who is in charge]. Others include the failure to state where your property goes if the principal beneficiary fails to survive the person making the will [i.e. if you leave your house to your husband and he dies before you]. Lastly, the self-proving affidavit is not included [i.e. specific legal phrasing that is as readily recognizable to lawyers as CTO and KPC is recognized by your teenagers]. This will permit the will to be probated without the witnesses having to appear in court at the probate hearing [again, less time in court, less happy probate lawyers].
What happens if I die without a will?
This is referred to as dying “intestate” and your property would pass under state law to your next of kin [even if you really didn’t like him]. One problem that can arise relates to community property such as your house. Generally speaking, in Texas you and your husband are presumed to both own 50% of your home. If you have children from a prior marriage [relationship, etc.] your half ownership of the house does not pass to your widower [your kids’ step dad], but instead passes to your kids. In that case, you end up with your husband jointly owning the house with your children [his step kids]. This is not an ideal situation.
