If my husband and I had a joint Will and he passed away, can I make a new Will?

Our Will read if he died everything would be left to me. If I died, everything would be left to him. If we died together, everything would be divided between our 4 sons. He passed away and now I want to change some things in the Will. I need to appoint an executor and make clear who gets what so there will be little arguments when I die. It seems to me this will has been settled and I need to have a new Will.

Asked on August 31, 2011 Texas


M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

I am so sorry for your loss.  It is difficult in this type of forum to determine if the estate is "settled" as you say, since one can not see what property was left and if it transferred automatically upon death or otherwise.  Generally speaking, if property is jointly held then it passes to the spouse on the death of one of the spouses.  But if there is property that was not jointly held with the spouse, then it must be probated so that it can indeed be transferred to the beneficiary in the Will.  If that is the case here then you need to probate his Will.  At that time everything goes to you and then yes, you can do with it as you please (i.e., make a new Will).  Get legal help in your area.  Good luck.

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