Skip to main content

Will, probate

Houston, TX |

my husband claims that he has written a will and he has put my name and his adopted child as beneficiary in his will . but he never showed me the will , how can I be sure that he didn't update the will that his son inherit everything ? if one day he dies , and in his will everything goes to his son , is it possible I claim against the will ?

Attorney Answers 4

Posted

You can't be sure. He doesn't have to show you it and he could always change it later. If you are a surviving spouse you do have what are called "elective share" rights (i.e., a surviving spouse cannot be completely disinherited and usually can obtain about 1/3 of the estate). What is part of the TX elective share I will leave to the TX attorneys.

This is not legal advice nor intended to create an attorney-client relationship. The information provided here is informational in nature only. This attorney may not be licensed in the jurisdiction which you have a question about so the answer could be only general in nature. Visit Steve Zelinger's website: http://www.stevenzelinger.com/

Mark as helpful

1 found this helpful

4 lawyers agree

2 comments

Asker

Posted

thanks for your reply, some of his assets are in iowa, but both of us have id issued in texas, which place cane be considered to place that will will be enacted? the state that will was written there? the state that person passes away there? or the state that his assets are there? or where he resides?

Steven M Zelinger

Steven M Zelinger

Posted

Residency determines the location of the probate. Residency sometimes can be argued. If he owns real estate in a different state then his state of residency, he will have an "ancillary" probate in the state(s) where the other real estate is located but the primary state of probate will control.

Posted

Mr. Zelinger makes a great point. It is also crucial that you understand what your husband's Will can and cannot dispose of. A Texan's Will can dispose of 100% of their separate property and their 50% of the community property that they share with their spouse. That is, your husband cannot give your property away through his Will.

You might do well to visit an estate planner for yourself. Although your husband has no obligation to show you his Will, or even include you in it, you could always get a little more educated on spousal rights and community property in Texas. Best of luck.

This answer does not constitute legal advice. I am admitted to practice law in the State of Texas only, and make no attempt to opine on matters of law that are not relevant to Texas. This answer is based on general principles of law that may or may not relate to your specific situation, and is for promotional purposes only. You should never rely on this answer alone and nothing in these communications creates an attorney-client relationship.

Mark as helpful

1 found this helpful

6 lawyers agree

2 comments

Asker

Posted

thanks for your reply. are life insurance and retirement considered community property?

James Brian Thomas

James Brian Thomas

Posted

Both great questions for an estate planner near you. Community property principles are a feature of state law. Retirement plans are often governed by federal law rather than the laws specific to any state. As a result, many retirement plans require that a spouse be designated as a beneficiary, or authorize the designation of another beneficiary. Other assets, even including life insurance policies, can trace their community or separate property character to how they were first purchased. Your questions are dead-on, and it sounds like you'd do well to spend a little time with a planner that has your best interests at heart.

Posted

The previous answers are correct. You cannot be certain your husband has actually done a will unless you have seen it. Even then he has every right to change or revoke his will. He could leave all his interest to anyone he wants. Texas law does not require a spouse to leave anything to a surviving spouse. However, even if you are not in his will, you still have legal rights if he were to die. For instance, you would have the right to remain in the homestead for the rest of your life, even if it was owned by your husband as separate property and even if he left the interest to someone other than you in his will. This life estate is provided by law to the surviving spouse and as long as the surviving spouse pays the mortgage and taxes and keeps up the property no one can force them to leave. Because Texas law does provide spousal protections and we are a community property state I too would advise that you visit an attorney who drafts wills and put an estate plan in place for yourself and your child. You mentioned that your husband had adopted your son so providing for him and selecting a guardian for him should be covered in your will.

The above answer does not create an attorney/client relationship. These responses are merely intended to provide general information about the question asked. In all cases, an attorney should be retained to review the full circumstances and deliver advice consistent with the information learned.

Mark as helpful

1 found this helpful

5 lawyers agree

2 comments

Asker

Posted

thanks for your reply, its not my child, he is adopted child from my husband previous marriage. homestead means that i cant sell the house and I just have right to live on it?

Steve H. Evans

Steve H. Evans

Posted

Assuming that he has indeed made a will leaving his estate to you and his adopted son, the only way you could sell the house is with the consent of the son if he is given an interest or by court order through an action called partition, if the son would not agree. The positive side of this position is that since you have the right to live in the homestead (and the son does not even if he inherits an interest) he cannot force you to sell the home. If your husband did not do a will and has no prior will then his interest in the property will pass by intestacy and depending on whether the property is community or separate, real property or personal property, you would receive an interest but to determine exactly what that interest would be you would need to meet with an attorney knowledgeable in estate planning and probate. In either scenario, with a Will or without one, you would receive a life estate in the homestead.

Posted

If he hasn't shown you the will, then you can't be certain of anything.

To make it worse, even if he HAS shown you the will, you can't be certain of anything. He can change it with a new will or codicil tomorrow.

You need to talk with an attorney to go over your assets and his and see what is subject to his estate and how you want to handle things. Obviously there are some trust issues going on.

Mark as helpful

1 lawyer agrees

Wills and estates topics

Top tips from attorneys

What others are asking

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer

Browse all legal topics