Addressing potential ‘common disaster’ in wills
Q: What happens if spouses each have wills that leave everything to each other, and then to their only child as the alternate beneficiary, with no other beneficiaries named, but then one spouse dies, the child dies unexpectedly and the surviving spouse develops Alzheimer’s?
A: It is possible that the spouses in your question did not hire a lawyer to write their wills, and instead they tried to draft the documents themselves. Failing to address what happens if all three of them are not living is a rookie mistake.
It is rare for a will written by a lawyer to leave out what happens in a situation such as you described, or in what is often referred to as a “common disaster” in which the entire family dies together. At least, it is rare if the lawyer has any experience writing wills. Sometimes, a lawyer who should not be writing wills does so anyway, and you might see documents drafted like that.
When a family consists of two spouses and only one child, it is very important for the wills to address what happens if all three of them should die. If you look at your own wills, you may find that the issue is properly addressed, and property is left as a last resort to your “heirs” or other beneficiaries you have named.
In the situation you described, the surviving spouse would still die with a valid will, but it would fail to dispose of any property. The will might also not name an executor who is alive and able to administer the estate. In that case, some other family member would need to ask the court to be appointed as the “administrator” of the estate, and a separate “heirship determination” would be needed to figure out who inherits the property of the estate.
Q: Our neighbors have a very tall and healthy tree with branches that hang over our house. The branches are close to our roof, but not touching yet. We have asked them several times to cut the branches, but they say it’s our problem. Can we force them to cut back the branches?
A: No, you can’t. Your neighbors have no duty to cut the branches from a healthy tree.
You have the right to cut the branches right up to the property line to prevent damage to your property. You don’t even need to ask your neighbor for permission.
The information in this column is intended to provide a general understanding of the law, not legal advice. Readers with legal problems, including those whose questions are addressed here, should consult attorneys for advice on their particular circumstances. Ronald Lipman of the 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