What can you put in your will?

I get a lot of questions from my clients, family, and friends that go something like this: can you do ________ in your will? Generally, the answer is yes. You don’t have to give your property to your spouse, children, or any other family member. You are free to disinherit whomever you want in favor of anyone else. You can also give property to groups or any other organization. Simply put you can give your property away however you wish.

The things you cannot do are fairly limited. The big one is that you cannot give away property you do not own. I know this sounds silly, but here is how it happens. There is a married couple, they purchase property while they are married, so the property is community, making it ½ the husband’s and ½ the wife’s. The husband in his will gives the property to his son from a previous marriage.

This situation is called a widow’s election, because now the wife must choose to either contest the will or keep her ½ of the property. What the spouse chooses to do largely depends on what the property is, if it’s a watch or something of little intrinsic value and the surviving spouse gets the rest of the estate, then she might choose not to contest the will. However, if the property is a large portion of the estate, they she may choose to keep their ½. Please consult an experienced estate planning and probate attorney if you are thinking about leaving community property to someone other than your spouse or if your spouse has left community property to someone other than you.

If you have any questions email me at chris@jguerralawfirm.com.

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