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.
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
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.
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).