Ask Terry

Q: I have two children by a previous marriage and my wife has three children by a previous marriage. I wish to do a will where all children are treated equally. My wife wants to do the same as well. Do we need to do a will and is it possible to treat all the children the same?

A: A simple will could be prepared which awards all of your estate to your wife and if your wife is no longer living, then leave all of your estate to all children to be divided equally. Your wife would be able to do a will leaving everything to you and to all children if you predecease her. This will create wills which treat all children the same.

You should be aware that wills do not become effective until the person who made the will dies. The will may be changed at any time before death. The person who survives their spouse could change his or her own will after the spouse dies. If you want more control over your property, you should contact a lawyer about whether you should set up a trust.

Q: I have two adult children by a previous marriage. My wife and I have one adult son. I own a house and raw land. Do my wife and I really need a will?

A: Yes. You both need a will. When a person dies without a will the family will have to prove each marriage and each child born to the deceased to determine who the state has determined is entitled to your property. The process will generally cost more and take more time than if a person has a will.

Property which is acquired before marriage or inherited is considered to be separate property. Property acquired while you are married is considered to be community property. In order to dispose of your property the way you want to dispose of it, requires a will. Many times a married man will want his property to go to his wife upon his death. However, in your circumstances most of your property would go to your children. The will allows the transfer of title to the person as you desire.

A will is a way to simplify the life of your survivors. Even a married couple with no children should have a will to prevent their spouse from having to prove that there were no children born to the deceased spouse.

A will only takes effect upon death. You should also have a power of attorney in case of disability. Many people have a will but do not have a power of attorney. Some ailments strike suddenly and create instant disability. If a person suffers a stroke and becomes disabled a power of attorney will allow some person to handle their affairs when they will no longer be able to do so.

The person may not have the capacity to execute a power of attorney or a will after a sudden stroke. Planning for your family should include wills and powers of attorney for both you and your wife.

Q: I was divorced three years ago. As part of the divorce settlement I was to get a rental house valued at $100,000.

Somehow, the divorce decree did not mention the property and our divorce was agreed.

After the divorce, when my ex-wife and I were on good terms, she executed a warranty deed to me for the property. The problem is that the notary who acknowledged her signature lost her notary book and cannot independently recognize my ex-wife.

The deed was recorded with the county clerk. I was not present when my ex-wife signed the deed and she is now claiming the notary has violated the law, the deed is void, and she still owns half of the rental property. The house is now worth $150,000. Does she still own half of the rental house?

A: No. If there was property left out of your divorce decree more than two years ago, the courts will presume the property to be community property with each party owning half. The warranty deed executed by your ex-wife to convey her interest to you is effective. The fact that the notary lost her notary book does not invalidate the deed. Furthermore, once the deed is recorded with the county clerk, a certified copy has the same authority as it does when signed by a notary.

In order for your ex-wife to invalidate the deed she would have to prove that her signature was forged and that the notary is guilty of fraud. If the notary recognizes his or her own signature, you will own the property.

Q: My ex-husband has failed to pay child support. I have been awarded a judgment of $150,000 plus $10,000 for attorney’s fees. My ex-husband has since filed for bankruptcy and started a new job making over $100,000 per year. He tells me that the child support obligation was discharged in bankruptcy and he no longer has to pay the back child support. Is he correct?

A: No. He is not correct. Under federal bankruptcy law, child support and attorney’s fees incurred in connection with collection/child support litigation are non-dischargeable debts.

If your previous court order included an income withholding order you will be able to request an income withholding order to deduct funds from his employer. There are several ways to collect back child support.

An attorney can help you determine whether the available methods will be useful for you. Some are, a person can lose their driver’s license for failure to pay child support; a lien may be placed on land owned in Texas to recover child support; and a bank account may be frozen to collect child support.

The laws have become stronger for the benefit of children in need of support.