If will is written correctly, kids won’t have claim on house
The information in this column is intended to provide a general understanding of the law, not as legal advice. Readers with legal problems, including those whose questions are addressed here, should consult attorneys for advice on their particular circumstances.
Q: My wife and I have wills which give our homestead to each other. It is our intent that whoever survives will have the right to sell the home and retain the proceeds to do whatever he or she wishes with the money. Do our children have a claim on the proceeds if we do not specifically say so in our will?
A: Assuming your wills are valid and properly executed, and neither of you lacks capacity or signed the will while under the undue influence of someone else, the surviving spouse will have full ownership of the home and the freedom to do whatever he or she wants with it.
Q: My wife and I are retired with a combined annual pension of about $75,000. We own our home outright, with no debt on it, and we have savings of about $300,000. Our wills give everything to each other, and our two children share equally after we have both died. Do we need, or would we benefit significantly, from setting up a family trust and putting our assets into it?
A: There are two kinds of “family” trusts you might be asking about.
One of them is a trust designed to save estate taxes, and it is also commonly referred to as a “bypass” trust. Based upon current tax laws, you do not need this kind of a trust.
The other trust is a “revocable” trust, also commonly referred to as a “living” trust. You could possibly benefit from this trust for several reasons.
First, if you transfer your home and your other accounts to it, then there will be no probate at either spouse’s death.
Second, if the two of you are no longer able to manage your affairs, you can name someone to take over the trust seamlessly as the successor trustee.
However, revocable trusts are typically more expensive to set up than wills, and they can be troublesome to maintain and operate for the rest of your lives.
You should meet with an attorney to know for sure whether a revocable trust is right for you.
Q: My first wife passed away a few years ago without a will. We had two children together. I’ve been told that half of our house passed to them, and I retained my half.
I have since remarried, and my new will gives the home to my current spouse. Will she inherit half or all of the house?
A: Assuming you and your first wife owned the home as community property, and neither of you had any other children, then you inherited your wife’s half of the home when she died. At your death, you will be giving away the entire home to your new wife.
Ronald Lipman of Houston law firm Lipman & Associates is board-certified in estate planning and probate law by the Texas Board of Legal Specialization. Email questions to stateyourcase@lipmanpc.com.