Dear Mr. Premack: My wife and I want our house to be sold after death of both parties, and the proceeds should be divided among our living children and stepchildren. I am concerned – after I die, can my wife change her Will and leave the house to someone else? JW
A person always has the legal right to change his/her Will at any time. So if you die first and leave the house to your wife, she clearly has the legal right to change her Will to leave the house to someone else. You can control that possibility in the same way as suggested to SF. Your case sounds different than SF in that both you and your wife have made Wills already. But your concern about your spouse changing things after you die is legally valid.
The two of you could decide to leave your separate halves of the house to a properly written testamentary trust. If so, you are assured that the half of the house which you owned will pass according to your wishes (but the other half, still owned by your spouse, could potentially be diverted away from the family). You can better meet your goal by agreeing to create a living trust and then moving full title to the house into the trust. You both agree that after one of you dies, the trust cannot be altered. Then you know that both halves of the house must pass according to your agreed, preset joint plan.
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, November 26, 2010