Dear Mr. Premack: About fifty years ago, my husband and I had reciprocal wills drawn up. About fifteen years ago, my husband received an inheritance and started making remarks about leaving his inherited property to his nephew. I have children from a previous marriage who were legally adopted by my husband, and I also have some inherited property. I want to be sure my children will inherit from me and not my husband’s nephew. To do that, I had a will drawn up leaving all of my estate to my children. The lawyer suggested to my husband that he replace the fifty year old reciprocal will with a new will making any adjustments he saw fit. My husband never did so, and is now in hospice care. What happens to his inherited property when he dies? Does his nephew have any rights? Am I facing any problems? – E.K.
The phrase “reciprocal wills” means wills in which you leave all of your estate to your husband and he leaves all of his estate to you. They are essentially mirror images of each other. Both wills should also contain a contingency plan to dispose of the estates if you die together or when the second of you dies.
Your husband’s inheritance is his separate property. He has an absolute legal right to dispose of his separate property in any manner of his choosing, even to bypass you and leave it to his nephew. However, despite the fact that he made remarks about his nephew and the fact that your lawyer told him he should make a new will, your husband has not modified the fifty year old reciprocal will. Thus, you are still his sole legal heir under the terms of his existing will.
His nephew has no claim to any inheritance unless that right is granted by your husband under your husband’s will. Even if your husband died without a will (intestate) his separate property would pass in part to you and in bulk to his children. The adopted children have full legally rights as his heirs under the Texas laws of intestacy. His nephew would be an heir-at-law only if your husband had no surviving spouse, no surviving children, no surviving parents and no surviving siblings.
Your husband is now in hospice care, which means that the medical expectation is that he will die soon. When that happens, assuming he nominated you as Executor in his will, you need to hire a qualified probate attorney as soon as possible. Offer your husband’s fifty year old reciprocal will for probate as quickly as possible. Become Executrix of his estate by court order The legal notice required prior to the court hearing is unlikely to alert his nephew about the proceeding.
When the will is admitted to probate and you have letters testamentary, you can take action to transfer all of the assets into your name as is allowed under his will. His nephew retains the right to contest the will, but would bear the burden to prove that the fifty years old will is legally invalid. Nephew would have a very difficult, if not impossible, task. First, it is very normal for spouses to leave assets to each other. Second, fifty years ago your husband was young, healthy and competent. Third, since the will has existed for fifty years, proving it is a fake or forgery is unlikely. Your prompt action to admit the will to probate is your best guarantee of avoiding problems.
After the assets are all transferred into your name they become part of your estate. Your will leaves all of your estate to your children. Again, when you die they should hire a qualified probate attorney as soon as possible to offer your will for probate. Your Executor can then transfer all the assets to your children, including the property that your husband had received by inheritance (but had left to you in his own will).
Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2012) practicing estate planning and probate law in San Antonio.
Original Publication: San Antonio Express News, October 19, 2012