• FreeAdvice has a new Terms of Service and Privacy Policy, effective May 25, 2018.
    By continuing to use this site, you are consenting to our Terms of Service and use of cookies.

second marriage wondering how to write will

Accident - Bankruptcy - Criminal Law / DUI - Business - Consumer - Employment - Family - Immigration - Real Estate - Tax - Traffic - Wills   Please click a topic or scroll down for more.

marriedmom

Junior Member
New York

My husband and I both live in NYS. He inherited a large sum of money (which is now in our joint savings) and a home from his mother upon her death. This is the home in which we both live with our individual daughters. I wanted to buy a home for ourselves but my husband talked me out of it since he said it was a waste since we have an empty home which we could occupy.
The mother of his daughter is on drugs and has a 21 year old boyfriend who controls all she does. I am concerned about how my husband's death would leave me financially. How can he/we (we have a joint will) write his will so that will leave me in a financially stable position?What is the name of your state (only U.S. law)?
 


justalayman

Senior Member
I leave everything to my wife, marriedmom (be sure he uses your name).

That should take care of it.



Especially given there is a "large sum of money", you really should just set down with a lawyer and discuss what each of you want to do with your estates. It's too easy to write a poor will and once your gone, it's really hard to correct the mistakes.
 

ecmst12

Senior Member
I suspect hubby will want to provide for his children as well as his wife.....

However, he can put the house into both of your names as joint tenants with right of survivorship, so that whoever goes first, the home will pass directly to the other person outside of probate and protected from any claims on the estate.
 

justalayman

Senior Member
OP asked about a joint will. That is where both husband and wife make one will together. Typically it gives all of either's assets to the other. It also includes d for when the second partner dies as well disbursing the cumulative estates to whomever they jointly choose to when writing the will.

The surviving spouse cannot change the will, or at least cannot change it without a lot of legal wrangling.

that's why the quip in my post. OP would inherit everything in a typical joint will.


. How can he/we (we have a joint will) write his will so that will leave me in a financially stable position?
the typical joint will will leave the OP in fine condition as she will inherit everything. The strange thing is, OP claims they already have a joint will so why is OP asking questions now?
 

anteater

Senior Member
The surviving spouse cannot change the will, or at least cannot change it without a lot of legal wrangling.
I would not go too far with that, jal. The contractual nature of a joint will is very dependent upon state law and the wording in the will. For example New York EPTL states:

§ 13-2.1 Agreements involving a contract to establish a trust, to make a
testamentary provision of any kind, and by a personal
representative to answer for the debt or default of a
decedent, required to be in writing
(a) Every agreement, promise or undertaking is unenforceable unless it
or some note or memorandum thereof is in writing and subscribed by the
party to be charged therewith, or by his lawful agent, if such
agreement, promise or undertaking:
(1) Is a contract to establish a trust.
(2) Is a contract to make a testamentary provision of any kind.
(3) Is a promise by a personal representative to answer for the debt
or default of his decedent.

(b) A contract to make a joint will, or not to revoke a joint will, if
executed after the effective date of this paragraph can be established
only by an express statement in the will that the instrument is a joint
will and that the provisions thereof are intended to constitute a
contract between the parties.
 

justalayman

Senior Member
I disagree with what I understand your understanding of that statement to mean.


What I believe it means is to make the will irrevocable, it must be written as such. I read that as referring to the time before either party dies. Often times, such a will is irrevocable without both parties agreeing to the revocation. I read that as NY requires the parties to agree it is or isn't irrevocable upon only one parties desire to revoke the will or it requires both parties agreement to act.

I do not believe that addresses a post mortem action.
 

anteater

Senior Member
I do not believe that addresses a post mortem action.
No, it does.

(b) was added in 1983 to attempt to make clear that a joint will needed to contain an express statement that the parties' intent was to enter into a contract. And that the surviving spouse remains bound by the terms of the will.

In the Matter of The Estate of Rubin Lubins gives some of the New York background and a contrast to another case in which the will was found to have met the requirements for a contract.

http://scholar.google.com/scholar_case?case=100739958434416046&hl=en&as_sdt=10000000000002&as_vis=1
 

justalayman

Senior Member
No, it does.
You win. It makes the creation of a joint will without the contractual intent useless for anything other than when both testators die simultaneously but it is what it is.

In other words, that decision goes against common sense.
 

anteater

Senior Member
Well, it means that the testators have to be clear about their goals and the state of the law in their state.

While joint wills sound neat, they are kind of out of favor now. You can end up where the surviving spouse is in a straitjacket.
 

justalayman

Senior Member
=anteater;2719027]Well, it means that the testators have to be clear about their goals and the state of the law in their state.
I'm betting if you could ask the person who died first if their intent was for it to be irrevocable, they would say yes. As I said; it typically serves no purpose unless it is binding.



While joint wills sound neat, they are kind of out of favor now. You can end up where the surviving spouse is in a straitjacket.
not understanding what you mean.
 

anteater

Senior Member
I'm betting if you could ask the person who died first if their intent was for it to be irrevocable, they would say yes. As I said; it typically serves no purpose unless it is binding.
The problem is that the first to die is no longer around to clarify the intent.

I don't want to speak to every state, but generally courts are reluctant to impose restraints on how a person disposes of their assets, including the ability to revoke an earlier will. I think that is why some (many?) states that permit joint wills (and not all do so) have gravitated toward requiring expressed intent to create a contract.

I was simply saying that those wishing to create a joint will that can't be revoked by the survivor need to pay close attention to the law in their state.

not understanding what you mean.
Simply saying that a joint will that attains contractual status places constraints on the survivor's ability to react to changed circumstances.

Say, the will says that, upon the death of the survivor, the kids split things equally. But what if one of the kids develops a meth addiction and ends up serving 25 to life in Ossining for several armed robberies? Or one of the kids becomes disabled and the survivor would prefer to leave a larger share to that child?
 
Last edited:

justalayman

Senior Member
anteater;2719206]The problem is that the first to die is no longer around to clarify the intent.

I don't want to speak to every state, but generally courts are reluctant to impose restraints on how a person disposes of their assets, including the ability to revoke an earlier will. I think that is why some (many?) states that permit joint wills (and not all do so) have gravitated toward requiring expressed intent to create a contract.

I was simply saying that those wishing to create a joint will that can't be revoked by the survivor need to pay close attention to the law in their state
.I agree it should be carefully constructed to abide by any laws. It just makes the term "joint will" kind of meaningless in itself because a joint will has no unique control. It is misleading in it's statement.

Of course, there are a lot of things that people shouldn't do DIY and this is just another example of why.


Simply saying that a joint will that attains contractual status places constraints on the survivor's ability to react to changed circumstances.

Say, the will says that, upon the death of the survivor, the kids split things equally. But what if one of the kids develops a meth addiction and ends up serving 25 to life in Ossining for several armed robberies? Or one of the kids becomes disabled and the survivor would prefer to leave a larger share to that child?
gotcha. I was thinking more in the terms of one of the testators having the problem and it didn't make much sense.
 

Find the Right Lawyer for Your Legal Issue!

Fast, Free, and Confidential
data-ad-format="auto">
Top