Dear Mr. Premack: I am totally confused about the probate process and what appears to me to be the illegal disposition of possessions. What does "community property" have to do with a Will, and can a husband leave something like a piece of land to a favored child without consent from the wife? Can a married man even buy a piece of property in his own name as a single man and exclude his wife from that property in his Will? I’ve seen things like this happen and it goes through probate court without a hitch. What good is a Will that violates a law, and what good is a probate court that doesn’t care? From what I have seen there is NO LAW, it is only what the courthouse clerks decide is ok. – WDM

From the tone of your letter you feel you have been harmed by a system that did not act as you expected. You admit confusion, and your questions seek more information about the laws on which the system is based. There are laws that rule the probate process, and those laws are followed by the courts. The clerks do not give legal advice or make legal decisions.

The courts try to be consistent in their interpretations and decisions. The people involved work hard to apply complex rules to messy real life situations presented by well-meaning people with deep disagreements. The best thing you can do to avoid litigation is to provide clear instructions in a Will drafted by an experienced attorney who knows the laws and how they will be applied.

For instance, you ask about community property and about one spouse’s ability to give away an asset in his/her Will without the other’s consent. In Texas, the community property laws create joint 50-50 ownership of all assets acquired during a marriage, except for separate property assets. Separate property is defined as assets 1) acquired by gift or inheritance, 2) purchased with funds a spouse owned before the marriage, or 3) which the two spouses have agreed, in writing, belong solely to one of them.

Texas law allows a spouse to dispose of his/her separate property and his/her half of the community property. Thus, a married man can buy land in his own name – not as a single man, but as separate property belonging to a married man. To do so, the land must be acquired using pre-existing separate property or his wife must agree in writing that the land is his separate property. He then has every legal right to Will that separate land to a favored child or anyone else of his selection. Such a Will does not violate the law.

What he cannot do is dispose of his wife’s separate property or of her half of the community estate. The courts will not enforce those portions of his Will if his wife raises objections.

There are exceptions. For instance, a legal concept called a "forced election" makes the surviving spouse choose between keeping only her half of the community versus accepting all the community estate in trust for her benefit. Not frequently used, this idea allows your Will to provide more protection to an ill or inexperienced surviving spouse.