Do You Have the Will or Don't You?

Get a Will

First let me say I am NOT an attorney. I am a Real Estate Broker with well over a thousand transactions of experience. The most heartbreaking thing I deal with is selling a home after a death in the family.

Somewhere in the past there became a misconception about the evils of probating wills. This led a great number of people to believe that the best way to keep the government out of their business was to not have a will at all - or the legal term, to die intestate. That is all well and good if you just have personal property. But a huge problem arises if you have real property - a home or land. Without a will stipulating who it is to go to, it will be divided among your heirs. This is where it gets tricky.

I practice real estate in Texas and Texas is a community property State. So if someone dies without a will there are a couple of things that can happen. If they are married and their only children are from that marriage, then the entire estate goes to the surviving spouse. If there are children from outside that marriage and they are married then half of the estate automatically goes to the surviving spouse. The other half of the estate is divided equally among the children of the deceased. If there was a previous marriage and there were children from that previous marriage, they get to split the half of the estate designated for the descendants as well. This can get real sticky if there are bad feelings between the families.

I recently had some clients (second marriage for him with children from the previous marriage) who had bought a home and acreage with a mortgage, then wisely decided to make a will to make sure the surviving spouse got the entire property should one of them die. They went on line, downloaded a will and filled it out. Several months later the husband died unexpectedly leaving the bereaved wife to settle his estate. She no longer wanted to keep their house because of the memories and expense of the mortgage payment so she contacted me to list the home. We had just helped her mother buy a home they were going to share after the farm sold. I asked to see the will since she had not probated it yet and I was going to need to get it to the title company. My heart dropped when I looked at it. He had named her as his beneficiary with her mother as the secondary beneficiary BUT her mother was the only witness to the will. I then had to tell my client that I wasn't an attorney but I didn't think the will was valid because there was only one witness, not two as required (the form did have blanks for two witnesses) and the mother had signed and I didn't think a beneficiary could sign as a witness. I recommended she get the document to the County Judge's office as quickly as she could to have them take a look at it. I got the phone call from my devastated client three days later after she had been to the County Judge and had consulted an attorney confirming my suspicion. Her husband's children from his previous marriage now owned half the house. She ended up abandoning the property and letting it go back to the mortgage company because the children from the previous marriage were not helping her make the mortgage payment.


If you own real property GET A WILL! You can guarantee leaving it to exactly who you want and avoid a lot of hurt feelings, confusion and added expense to your estate. And while you are at it, be sure to give your executor or executrix the power to sell your real property to settle the estate, a point often left out. This prevents ALL the heirs from having to sign the listing agreement, contract and finally the deed.

Spending a few hundred dollars now, can prevent thousands of dollars of added expense and untold confusion for your estate. So make it a point to have the will to get your will !

Posted by Claudia Carroll on
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