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Does divorce void a will?

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stretchedthin

Junior Member
What is the name of your state? TX
My father recently passed away. His will was never updated after my parents divorced and my mother is listed as executor and beneficiary of his estate. Is the will still valid? My brothers attorney has advised us to proceed as if there were no will but I feel the will should still be submitted to the judge for him to decide. If they refuse to submit the will and proceed as if we didn't have one, is there anything I can do? I do have a copy of the original will.
 


Dandy Don

Senior Member
Yes, the will is still valid, but you may want to get another opinion from another attorney. The current wife is entitled to a certain portion of the estate by law, no matter what the will says.

Is ex-wife the sole beneficiary or are there other beneficiaries?
 

stretchedthin

Junior Member
My father never remarried. My brother and I are listed as beneficiaries in the event my mother passed away before my father. My brothers attorney says the will is null and void since my parents divorced and that my mother is entitled to nothing. My main concern is that my brother is insisting we proceed as if there is no will when clearly there is one and I don't know if there is anything I can do about it. I could care less who inherits his estate as long as everyone is playing by the rules!
 

stretchedthin

Junior Member
Just noticed I should be saying "our" mother instead of "my" mother. Guess I should clarify that my brother, our mother and myself are the only family members involved in this case.
 

Dandy Don

Senior Member
Is your brother's attorney a probate attorney? He may be correct that the will is null and void because of the divorce aspect (I haven't had time to find or look at the Texas law), but I somehow suspect that he might be incorrect about this, which is why you need to get a second opinion by consulting someone locally or posting your question to www.lawguru.com

------------------------------------------------
 

divgradcurl

Senior Member
stretchedthin said:
What is the name of your state? TX
My father recently passed away. His will was never updated after my parents divorced and my mother is listed as executor and beneficiary of his estate. Is the will still valid? My brothers attorney has advised us to proceed as if there were no will but I feel the will should still be submitted to the judge for him to decide. If they refuse to submit the will and proceed as if we didn't have one, is there anything I can do? I do have a copy of the original will.
The will is still "valid," but any parts that discuss his wife will be stricken from the will, and any gifts that would have gone to his wife will instead pass via intestacy. The one exception would be if the will were written AFTER the divorce was final -- if your dad wrote the will after the divorce, yet still included your mom, then the will would be completely valid. But, if the will was written PRIOR to the divorce, then the will is still valid, but any gifts to his former wife will instead be part of the intestate estate (or residuary estate, if there is a residuary clause) -- also, the ex-wife will not be named executor, someone else will.
 

stretchedthin

Junior Member
Thank-you so much for the clarification. My brothers attorney keeps insisting the whole will is null and void due to the divorce and has advised us to proceed as if there is no will and file intestate. I have advised my brother to get a second opinion and he refuses. They keep mentioning section 69 in the probate code to back up their statement that the whole will is null and void. It's my understanding, like you said, that only the part about my mother being beneficiary and executer will be stricken from the will and that the rest of it is vaild. The will is in their possession and I'm assuming it's going to magically disappear so they can follow through w/their plan to file intestate. Is there anything I can do about it? Isn't it illegal to not present a will to the probate court if you have one?
 

divgradcurl

Senior Member
stretchedthin said:
Thank-you so much for the clarification. My brothers attorney keeps insisting the whole will is null and void due to the divorce and has advised us to proceed as if there is no will and file intestate. I have advised my brother to get a second opinion and he refuses. They keep mentioning section 69 in the probate code to back up their statement that the whole will is null and void. It's my understanding, like you said, that only the part about my mother being beneficiary and executer will be stricken from the will and that the rest of it is vaild. The will is in their possession and I'm assuming it's going to magically disappear so they can follow through w/their plan to file intestate. Is there anything I can do about it? Isn't it illegal to not present a will to the probate court if you have one?
That's a weird reading of Section 69:

§ 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.

(b) A person who is divorced from the decedent or whose marriage to
the decedent has been annulled is not a surviving spouse unless, by
virtue of a subsequent marriage, the person is married to the
decedent at the time of death.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by
Acts 1979, 66th Leg., p. 1746, ch. 713, § 12, eff. Aug. 27, 1979;
Acts 1995, 74th Leg., ch. 642, § 2, eff. Sept. 1, 1995; Acts
1997, 75th Leg., ch. 1302, § 5, eff. Sept. 1, 1997.

Now, it may be that from a practical standpoint that the will is written in such a way that removal of the ex-wife essentially makes the whole will go away. However, legally the will is still valid, and it should be probated.

However, it sounds as if regardless of whether you probate the will or not, you and your brother will split things 50-50. If that's the case, then what's the point in making a big deal about things?

And just FYI, if you don't have a copy of the will, unless you go and grab the copy and probate it, you can't really force them to probate the will -- they could just open an intestate estate, and say that they lost the will or something. Unless you want to hire a lawyer to try and force them to cough up the will, there really isn't much you can do -- the courts will almost certainly take their word for it if they don't enter the will into probate.

But again, if it doesn't matter, why worry about it?
 

stretchedthin

Junior Member
I guess the big deal is that I've been asked to give up my right as administrator in favor of my brother. I'm not completely confident that my brother is qualified to serve as administrator and I feel that he has made a poor choice in representation and that the estate will be mismanaged. I would prefer that my Uncle who is also named as an executor in the will handle the estate but that is not going to be an option if the will is not filed. I'm also wondering what they have to gain by proceeding without filing the will. I can't help but think that there is some underlying motive.
 

divgradcurl

Senior Member
stretchedthin said:
I guess the big deal is that I've been asked to give up my right as administrator in favor of my brother. I'm not completely confident that my brother is qualified to serve as administrator and I feel that he has made a poor choice in representation and that the estate will be mismanaged. I would prefer that my Uncle who is also named as an executor in the will handle the estate but that is not going to be an option if the will is not filed. I'm also wondering what they have to gain by proceeding without filing the will. I can't help but think that there is some underlying motive.
Regardless of whether the will is probated or not, you can always challenge the appointment of an executor. You may want to hire your own counsel in that case, and you may want to weigh the advantages of a different executor against the any damage it might cause to the relationship between you and your brother. But once probate is opened (either with the will or as an intestate estate), you can always challenge the appointment of the executor.
 

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