What happens if I my husband dies and does not have a will? 26 Answers as of February 07, 2014

My husband is terminal. And has left no will. However I have become his conservator and would like to make a will for both of us. Is this possible?

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Law Office of Pamela Braynon | Pamela Y. Braynon
As the conservator or guardian appointed by the court, you can get a will done for him and sign it. Each one of you should have a will (no husband/wife) will. If he dies without a will, Florida has statutes in place that will be followed.
Answer Applies to: Florida
Replied: 2/7/2014
Law Ofices of Edwin K. Niles | Edwin K. Niles
Depends on your powers. Didn't you have a lawyer for the conservatorship? Why not ask him/her?
Answer Applies to: California
Replied: 2/7/2014
Richard J. Keyes Attorney at Law | Richard J. Keyes
In Missouri acting as your husband's attorney, you cannot make a will for your husband. What you need to ask is what assets are in your husband's name only. If all the assets are in joint names, then upon the first to die, there is no probate estate. However, check beneficiary designations on live insurance and IRAs so that you are the beneficiary upon your husband's death. If there is no beneficiary designation, these assets may have to go through probate.
Answer Applies to: Missouri
Replied: 2/6/2014
Strickland Law, PLLC
Strickland Law, PLLC | Jeffrey S. Strickland
If he is not competent to execute a will, then he will be deemed to have died intestate (without a will), and his assets will pass under the intestate succession statutes. A conservator cannot execute a will for the ward. Just because a person is terminally ill does not make them incompetent to execute a will. You need to speak with counsel.
Answer Applies to: Tennessee
Replied: 2/5/2014
Patrick W. Currin, Attorney at Law | Patrick Currin
If he is no longer competent legally, it is too late and the probate law will govern his estate.
Answer Applies to: California
Replied: 2/5/2014
    James Oberholtzer, Attorney at Law
    James Oberholtzer, Attorney at Law | James Oberholtzer
    Your husband may still have the legal capacity to make a Will even though he was found incompetent in the proceeding for the conservatorship. If he can express his wishes and make some kind of signature, he may be able to make a valid Will himself.
    Answer Applies to: Oregon
    Replied: 2/5/2014
    Law Offices of George H. Shers | George H. Shers
    No, the Will must be made by him, but if he lacks the mental capacity to understand what he is doing then he can not make a binding Will [if you are the only heir, there would be no one to contest the Will].
    Answer Applies to: California
    Replied: 2/5/2014
    Danville Law Group | Scott Jordan
    Yes it is possible. Although your husband is terminal, is he mentally incapable of knowing what his will would say? If yes, you would need to file a Petition for Substituted Judgment with the Court and obtain the right to draft and sign a will for your husband. However, is it really necessary? If you are joint tenants on property, the property becomes your sole property automatically on his death. I suggest you consult with an estate planning/probate attorney in your area. If you use an attorney to obtain conservatorship, consult with that attorney.
    Answer Applies to: California
    Replied: 2/5/2014
    Sebby Law Office
    Sebby Law Office | Jayne Sebby
    You can not sign a will on behalf of your husband. And each person has to have his or her own will so you can't make one for both of you. If your husband is competent, he can dictate the terms of his own will and then sign with an X. Have witnesses acknowledge in writing that he personally acknowledged the contents of the will and signed the document.
    Answer Applies to: Nebraska
    Replied: 2/5/2014
    Irsfeld, Irsfeld & Younger LLP | Norman H. Green
    No, you cannot make a will for him without the court's authorization. If he dies you will inherit all the community property. If he has no descendants or living parent, then you will get everything. If he is survived by one child (or the issue of one child), then you get half of his separate property. If two or more children, then you get one-third of the separate property.
    Answer Applies to: California
    Replied: 2/5/2014
    Minor, Bandonis and Haggerty, P.C.
    Minor, Bandonis and Haggerty, P.C. | Brian Haggerty
    If he can tell you his wishes, you can assist him in making and signing a will. However, it has to be his will and nobody else's. If he dies without a will (and I assume you are Oregon residents) then if he has children who are not also your children, you and his children will split his estate. Of course, much of what you own you probably own with him, as joint tenants with right of survivorship or as tenants by the entirety. These things you will inherit. If you are conservator for your husband, then you probably have a lawyer helping you with the conservatorship. Talk to that lawyer about what happens when your husband dies.
    Answer Applies to: Oregon
    Replied: 2/5/2014
    S. Joseph Schramm | Joseph Schramm
    If your husband dies without having made a will any property in his name alone will descend to his nearest of kin according to a statutory scheme. Any property owned jointly by your husband, such as real estate or bank accounts, or any property that is to go to a designated beneficiary, such as life insurance proceeds or Individual Retirement Arrangements (I.R.A. s ), would go to the surviving owner or designated beneficiary instead of the nearest of kin. Your husband can still make a will as long as he has the legal and testamentary capacity to do so.
    Answer Applies to: Pennsylvania
    Replied: 2/5/2014
    Ashcraft & Ashcraft, Ltd.
    Ashcraft & Ashcraft, Ltd. | Randall C. Romei
    If your husband passes without a will his estate will be distributed in accordance with the statutory rules on descent and distribution. If he has children, born to or adopted by him then as spouse you will receive ? of his estate and ? of his estate will be shared by his children. If there are no children you would receive his entire estate as the surviving spouse. Your husband's assets that are held in accounts that have designated beneficiaries or are payable on death to a particular person or are held in joint tenancy with another would pass to the other owner or the designated beneficiary outside of his estate, and not distributed per the statute. It is possible for a court- appointed guardian to petition the Court for approval of a change in the ward's estate plan. You would have to show that the new plan is in the ward's best interests. A Guardian Ad Litem would be used to review the plan to offer objections or approvals from the perspective of the ward.
    Answer Applies to: Illinois
    Replied: 2/5/2014
    Durkin Law, P.C.
    Durkin Law, P.C. | Roger Durkin
    Yes, if he is sound of mind. Otherwise, you and the children (if any) will inherit by statute. An administrator would be appointed, maybe you, to probate his estate. Most of what he owns would typically go to his wife and children by statute.
    Answer Applies to: Massachusetts
    Replied: 2/5/2014
    James T. Weiner & Associates, P.C.
    James T. Weiner & Associates, P.C. | James T. Weiner
    If your husband dies and has no will.. he dies intestate, e.g. without a will. His assets will pass statutorily subject to probate.. e.g. if his children are also yours you will get 100% of his assets. you cannot make a will for him as a conservator contact an attorney.
    Answer Applies to: Michigan
    Replied: 2/5/2014
    Frederick & Frederick PLC | James P Frederick
    You generally cannot make a Will, as Conservator. You may be able to get permission from the judge to do this, but I would check with an estate planning attorney to determine if it makes sense to try or not. Generally speaking, a Will is not the best kind of estate planning tool, because probate is required, in order for it to be effectuated. Whether a Will would do anything at all or not depends on how your assets are titled. If they are in joint names or if you are named as beneficiary, then they will pass to you in the event of your husband's death, and a Will would be irrelevant. If assets are titled in your husband's name alone, with no beneficiaries named, THOSE assets would pass under a Will. If you have assets like that, you should consult with an estate planning attorney to determine how best to proceed.
    Answer Applies to: Michigan
    Replied: 2/5/2014
    Donald T. Scher & Associates, P.C.
    Donald T. Scher & Associates, P.C. | Donald Scher
    If you husband dies without a will (intestate), then his estate, after payment of debts, expenses and taxes, will be distributed according to state law, to his spouse and children (if any). You do not become a "conservator" without being appointed by the superior court. You cannot make a Will for him, you can make one for yourself. If he has testamentary capacity, he can make a Will, power of attorney and other documents which will make it easier for him and for you. The fact that he has a terminal disease, does not prohibit him from making a Will or POA.
    Answer Applies to: Arizona
    Replied: 2/5/2014
    R. Steven Chambers PLLC | R. Steven Chambers PLLC
    Is your husband still competent? If he is he can certainly make a will before he dies. If he is not competent then you can't make one for him. If you've been appointed as conservator of his property he doesn't need one anyway.
    Answer Applies to: Utah
    Replied: 2/5/2014
    Law Office Of Victor Waid
    Law Office Of Victor Waid | Victor Waid
    First question: Do you two have assets? If yes, are they held in Joint Tenancy? If yes, then you will survive to his interest in the assets by right of survivorship. If not, obtain the services of a probate lawyer immediately and get the title of assets into joint tenancy or accounts to Pay On Death; in addition obtain a will for yourself; as to your husband for a will, the attorney will need to make his own determination as to whether husband is capable of executing a will, meaning sign the will.
    Answer Applies to: California
    Replied: 2/5/2014
    Mains Law Office
    Mains Law Office | Julie Mains
    I am sorry to hear of the difficult circumstances regarding your husband. The answer is: It depends. If you are a conservator, you need to get a court order to do estate planning on behalf of the conservatee. I would suggest possibly a Trust if you own real property and are in California but everything will have to be done through the Court. Otherwise, you will go through probate after he passes.
    Answer Applies to: California
    Replied: 2/5/2014
    Gates' Law, PLLC | Thomas E. Gates
    He can only make his own will. If he dies without a will, he dies intestate. In most states the wife gets his share of the estate.
    Answer Applies to: Washington
    Replied: 2/5/2014
    Goldsmith & Guymon
    Goldsmith & Guymon | Dara Goldsmith
    Maybe. In Nevada you would need specific court approval. All persons related to the second degree of consanguinity need to be noticed. It cannot not result in more to you that you would get under intestate law. You should speak with a guardianship/conservatorship attorney about this. It is complicated. This information is only intended to give general information in response to an inquiry. It does not establish an attorney client relationship. This response is only based upon the limited facts presented and is merely intended to assist you in determining if you should contact an attorney to provide you with legal advice.
    Answer Applies to: Nevada
    Replied: 2/5/2014
    James Law Group
    James Law Group | Christine James
    No. Wills are personal. Additionally, if he has a conservator, he does not likely have legal capacity to make a will.
    Answer Applies to: California
    Replied: 2/5/2014
    Musilli Brennan Associates PLLC
    Musilli Brennan Associates PLLC | John F Brennan
    As long as he remains rational he can make a will even if he is terminal. Engage an attorney now!
    Answer Applies to: Michigan
    Replied: 2/5/2014
    Kirby G. Moss PC | Kirby G. Moss
    You should try and do wills as soon as possible so that his, and your intentions are realized. Otherwise, everything is determined by Intestate Succession, which may not reflect your desires.
    Answer Applies to: Indiana
    Replied: 2/5/2014
    Peters Law, PLLC
    Peters Law, PLLC | Mark T. Peters, Sr.
    No, I do not believe that you can make a will for him. However this would only be an issue if he has separate property. If you both own everything together, it should probably go to you upon his death. You need to talk with a local probate attorney about the issues.
    Answer Applies to: Idaho
    Replied: 2/5/2014
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