Spouses Should Make Separate Wills

Dear Mr. Premack: My father and mother passed in 2007 and left a will recorded at courthouse. The house is willed to my youngest brother. What do we need to do to transfer the title to his name? – ID

Two questions about your question: 1) Did your two parents leave just one Will? It was common 30+ years ago for spouses to make what was called a “joint and mutual Will” but today spouses almost always each make their own separate Wills. 2) Does “recorded at the courthouse” mean that the Will was filed for and admitted to probate, or does it mean that it was placed for safekeeping with the county clerk’s office? If it was just filed for safekeeping, then you must hire a qualified attorney to submit it for judicial review in probate.

Once the Will has been admitted to probate, the court will authorize “letters testamentary” for the Executor nominated in the Will. That Executor then has the duty and power to fulfill the terms of the Will, including the instruction to turn over the house to your youngest brother. To do so, the Executor would sign and file a deed with the real property records at the courthouse, conveying title from your parents’ estates to your brother. He then owns the house, has the benefit of it, and is responsible for it.

Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2013) practicing estate planning and probate law in San Antonio.

Original Publication: San Antonio Express News, March 5, 2010

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Paul Premack, 2019-2020 President of the Texas Chapter of the National Academy of Elder Law Attorneys (NAELA) is *Certified as an Elder Law Attorney ( CELA ) by the National Elder Law Foundation as accredited by the Texas Board of Legal Specialization and the ABA. He is licensed to practice law in Texas and in Washington State, and handles San Antonio Probate and Bexar County Probate, Wills, Living Trusts, Estate Planning, and writes the legal column for the San Antonio Express News.

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