Each week I am asked by clients about issues that their reach beyond their business—from their children buying houses to preparing wills. This week, I decided to focus again on the will process and share a few questions from clients and my answers. I think the testate process is interesting and necessary to keep the family peace but also to protect your personal and business assets.
Q: I recently remarried and love my husband; however, before we married we agreed to keep our assets and money earned before marriage separate. In fact, we agreed not to change our wills so that our money and assets will continue to go to our children. But, my husband and I live in my home. After I die, I want my husband to be able to stay in our home (even though I own it). Can he?
Answer: Good question. Even though you did not leave the house to your husband (and presumably left to your children that do not live there), your husband has a right in Texas to live in that home until he dies. Only after your husband dies do your children have full rights to the property. During your husband’s lifetime, however, he is responsible for the maintenance and insurance on the home. Obviously, it would be to his benefit to be kind to the children and let them know that he is taking good care of his home that he shared with their mother. Be advised, that your husband’s right to stay in the home does not change even if he remarries.
Q: Can I leave my children and grandchildren out of my will? I do not want them to inherit anything. Instead, I want to give my possessions to charity.
Answer: Yes. You can will your property to whoever you choose and can choose not to will anything to your children or grandchildren. No Texas law exists that requires anyone to leave any property to their children. However, your children may choose to contest the will and seek legal recourse. They can do this during the probate process and challenge your capacity at signing or that you signed under undue influence. They may also challenge the signature or your witnesses. Clearly, this may be an uphill battle. Be sure to discuss these issues with your attorney. One remedy could be that you have a will signing video that memorializes all the proper procedures and reflects your full testamentary capacity to sign the will.
Q: My parents left my brother, sister and I their home. It is paid in full and I want to sell to realize some cash. My sister wants to live there and refuses to sell. My brother wants to sell. We do not want her to live there but she is attached to the home. What can we do to force her to sell?
Answer: Answer: Unfortunately, if your sister refuses to sell her portion of the house, you will need to file a lawsuit to partition the sale. You have an equal right to your portion of the house and since it cannot be physically divided, the Court will need to order a sale. Even though that is the procedure, you should speak with your siblings and advise that the sale will not realize the same amount of cash like you would now by selling considering the partition process is expensive. You may visit with an attorney and see what solution you could work out amicably.
Editor's note: The information in this column is not intended as legal advice but to provide a general understanding of the law. Readers with legal problems, including those whose questions are addressed here, should consult attorneys for advice on their particular circumstances.
