What happens to the home if the wife dies without a will?


David: I had been married to my second wife about two years. She has a 12 year old daughter. She is the sole owner of the house that we live in. And neither of us have a Will. So if she kicks the bucket tomorrow without a Will, what happens to the property and, of course, custody of the 12 year old? The 12 year old's father lived about a hundred miles away and does not have any sort of custody. So is there, anyway, without a Will that I can ensure custody and gain of the property?

Attorney Tom Olsen: Well, let's start by saying this David; you and your wife are both perfect candidates to have a Will done. And in your wife's Will, she can certainly nominate that you be guardian for the 12 year old if she were to pass away. So David, if I do a Will for you and your wife, we'd be setting up Trust and guardianship provisions, very important for your 12 year old. Now David, when I do a will for people, I typically do a package of four documents. I do the Will itself; I do a Living Will Declaration where you ask that you not be kept alive by artificial means, a Durable Power of Attorney for healthcare and a Durable Power of Attorney for financial affairs. So all are very important David. But your specific question is this; your wife owns a home you live in under her name only. There is only one thing that can happen to that home upon her death, whether she has a Will or whether she does not have a Will. And that is this, if she passes away, you get a Life Estate in it, you get to live in the home for the rest of your life, and upon your death, that home will go to her child. No matter what the age happens to be. 

David: I see. Okay. So that answers that question. But without a Will, what about the custody of the 12 year old? Does her father even have a say-so in that regard if he does not have custody in the first place?

Attorney Tom Olsen: Well, the court is always going to do what is in the best interest of the child. So the natural father always is going to have first choice to have custody of the child if mom happens to pass away. Any interested party, including you or a brother or a sister can go to court and say, "Judge, the natural father is an alcoholic, a drug addict, a child abuser, doesn't own a home, not a stable parent", all of those would be reasons for a court to deny custody to him. But he is always going to have first option.

David: If a Will was drafted by my wife, and she does designate me as the guardian, what authority will the father have in that regard?

Attorney Tom Olsen: Well, when she puts in her will that she wants her husband, David, to be guardian of her 12 year old child, she's simply stating her desire; it is simply one more factor that the court will use to determine ultimately where the 12 year old goes to. Again, the natural father is going to be first choice, but let's say the court said, "You know what, the natural father is not a good choice at all". Then they're going to look to your wife's will. It says, "Hey, I want David to be the natural father". And that's probably going to carry the most weight, if anything. So David, it's still worthwhile doing.