Still Benificary??

Texas -

My husband wrote up a will when he was married to his first wife. He was in the military and leaving for war and had to have one written up. They only have one daughter. In the will, it states (naturally) that everything be left to the wife (now ex) and his daughter. Since then, He and I have married and have one child together. Where do me and my son stand without a new will. I think it's only fair that in the event of a tragic accident, that his daughter's support be taken out of his estate, or that his daughter be entiltled to some of inheratiance, but not his ex-wife.

Is that will still valid, or did his remarriage make it null and void?

AUG 15, 2001

DEAR JBUG:

Unfortunately for you, the old will is still valid. Your mistake is a common and innocent one made by a lot of people who aren't properly reminded or advised to update their will whenever there is a major change in their life (birth of a new baby, acquiring a new spouse, etc.).

Are you implying that you are left with no financial resources from your husband? Were there no insurance policies, pension benefits available?

What is the value of his estate? You may want to consult a lawyer (first consultation is usually free or very inexpensive) to see if there is anything that can be done to perhaps negotiate with the estate for something on your behalf of you and your son.

Thanks Advisor. No, I'm not saying that we would be left without financial resources. We do have insurance policies, etc. But what worries me are his assests, specifically our house that was specifically mentioned to be left to the wife (now ex).

I've asked him to redo a new will, but he thinks that the remarriage and new child, the state will act like there never was a will. And the good old act of procrastination.

Thanks again for the reassurance. No more asking nice. I'll maybe purchase one of those will on CD's that we can do on the computer. I think my request for a new will is not without reason or respect. Hubby doesn't object, just procrastinates. I'll take the initiative and get the ball rolling myself.

Under Texas law, the ex wife would get nothing from the will. The provisions relating to the daughter would still be valid. The will would be interpreted as if the ex wife had died (see the Texas statute below). You would be entitled to your half of the community property, and your son would be entitled to a portion of the estate also. However, it would be a very good idea for your husband to draw up a new will. That way the property will pass as he wants it to.

Texas Probate Code Sec. § 69. Voidness Arising From Divorce (a) If, after making a will, the testator is divorced or the testator's marriage is annulled, all provisions in the will in favor of the testator's former spouse, or appointing such spouse to any fiduciary capacity under the will or with respect to the estate or person of the testator's children, must be read as if the former spouse failed to survive the testator, and shall be null and void and of no effect unless the will expressly provides otherwise.

Thanks Loku. That was very helpful. As his will states that if his wife did not survive, everything would go to his daughter. I agree, will will definatly draw up a new will.

Another thought...if everything goes to his daughter (as stated from previous if wife died also), and since the daughter is still a minor...then technically, wouldn't the ex-wife still be in control???

Definately going today to see about a new will!!!

Thanks everyone!

AUG. 16, 2001

DEAR JBUG:

I can understand the reason for your husband's procrastination (since most people have a fear of facing up to the reality of their own death/mortality) but you need to make him see that you and your daughter will be left with a big mess in trying to sort out his affairs after he is gone, and it will be much easier on everyone in the family if he simply takes the time now to sign a new will that clearly expresses his wishes.

You need to even "cry" in front of him to make him realize that "if you really care about us you will do whatever it takes" to insure that "we are taken care of now". He could die tomorrow, although hopefully that will not occur, and the family is better off if it is prepared in advance.

However, your idea about doing a will from a CD or from the computer is not wise, since if there is any ambiguous or uncertain or unclear language that is not understandable in the document, there is a chance it could be declared void. You may want to use it to prepare a rough draft to get an idea of what you want (while discussing it with your husband as well to get his approval), but you then need to present that rough draft to a local probate attorney so he/she can review it to make sure it stands up to all legal requirements (you don't want any unnecessary surprises when the will is submitted for probate).

Advisor, Thanks so much again for your wisdom. you were right on the dot about "if you care about us, then you will do whatever it takes" It's just about what is right. I have seen a will on CD and you are so right. The language is so formal and hard to understand.

So when he draws up a rough draft, and once the probate laywer says is conforms to the legalities, is that it? Or will the laywer re-type up a formal one? Can I type it up? In Texas, as long as it is legally sound in context, isn't Hubby's signature and the signature of any party not included in the will acceptable? If not, do you know any rough estimate of cost? I won't hold you to it!

Thanks again. You have been a tremendous help!

There frequently are all sorts of problems with Do It Yourself and Form and Computer based wills, that are never discovered until AFTER the death.

It is a good idea to outline what he wants done "IF something happens" and then see a lawyer. ALso, as YOU may be the first to go -- even if you are 25 and healthy yopu should have a will too.

Most lawyers charge relatively little to prepare basic Wills unless the estate is large, in which case there may be a fair amount of time for estate tax planning, but in light of the estate tax at stake that could be saved by doing it right it is foolish to attempt to have him try it alone.

AUG 17, 2001

DEAR JBUG:

Forget my idea about drawing up the rough draft. All you really need to do to prepare in advance is write up a list of what the assets are (checking/savings accounts, pension benefits, IRA, CD's, life insurance, value of house, etc.) and a list of the names and addresses (and possibly dates of birth if known) of the beneficiaries.

Fees for will preparation vary according to the complexity of the estate. If it is just a simple estate, then cost might be anywhere from $200-$700. If it is a more complex estate with lots of assets to manage or keep track of or account for, then cost can go upwards of this. Contact about 3-4 different probate attorneys to ask them what they would charge and then decide from there.

Don't worry about typing anything up--that is the attorney's legal secretary's job in part of the preparation process.