While married couples usually agree on the same matters when creating an estate plan, the majority of lawyers don’t recommend joint wills. Why? The main reason is that a joint will would be irrevocable following the death of one of the spouses.
What Is a Joint Will?
Basically, it’s a will meant to cover the wishes of two individuals, usually for married couples. The joint will serves as their last will. It includes specific rules, typically indicated in the will, including that when one spouse passes away, the spouse’s estate is given to the other spouse. The estate then passes on their children in the event of the surviving spouse’s death.
In most cases, married couples who consider a joint will presume that having one will be more affordable and easier than creating two separate wills since they want the same things anyway. But this doesn’t take into account how certain states and courts regard joint wills or the potential issues of joint wills since they actually make things harder for surviving spouses.
Issues That Can Arise with Joint Wills
A joint will could potentially give rise to the following issues:
- They are not considered legal in certain states.
- Plenty of probate judges usually separate the joint will for each spouse or invalidate it.
- Joint wills are irrevocable contracts, which means that when one spouse dies, the surviving spouse won’t be able to amend the will even if their situation has changed significantly.
- Due to the irrevocability of a joint will, the property and assets of the spouse who passed away could be tied up for many years, which means that the other spouse won’t be able to sell it to help pay for family expenses or downsize the marital house.
- The surviving spouse also won’t be able to change beneficiaries, meaning that if the surviving spouse remarries, the stepchildren and new spouse won’t inherit assets included in the existing joint will.
- The surviving spouse won’t be able to disinherit anyone in the will and move money in separate trusts for adult children who can’t manage their finances well.
- A joint will doesn’t allow changing executors or beneficiaries, so you can’t add beneficiaries born after you’ve created a joint will or enable beneficiaries to fast-track their inheritance.
Why Separate Wills Are Better
With mirror or separate wills, each spouse could indicate identical provisions should they wish to. Likewise, after the death of one spouse, the surviving spouse will be free to amend the will and account for life changes, like a new spouse, new grandkids, or stepchildren.
Both spouses can also choose not to have identical provisions, but they must select the same legal guardian for their kids if they pass away simultaneously. In rare situations where there is a conflict between separate wills, courts will need to pick the legal guardian, so you must discuss these issues before creating mirror wills that don’t include identical provisions.
Due to all the potential issues inherent in joint wills, it’s plain to see why lawyers and courts are strongly against them. Likewise, you can use more efficient ways for bequeathing property, including separate wills containing different provisions, mirror wills, separate wills and a trust, or trusts. Make certain to seek legal advice from an experienced trust attorney for specific recommendations. This way, you know you’re doing the process correctly.
The suggested alternatives are better than joint wills since you cannot guarantee that the court will accept your joint will. On the other hand, the alternatives would certainly ensure that you and your spouse’s wishes would be followed when you’re gone. You don’t have to worry about your family’s future.