The Case Against Joint Wills for Married Couples
Creating one will for two individuals is typically not recommended since it’s irrevocable following the first spouse’s passing away.
Although married couples usually have the same objectives in mind when creating their estate plan, a lot attorneys discourage from joint wills.
What is a ‘Joint Will’?
A joint will is one will for two individuals, usually for a married couple, which serves as a last will and testament for both spouses. It has specific guidelines, usually stated in the will itself, which include that following the first spouse passing away, that spouse’s whole estate transfers to the surviving spouse. When the second spouse passes away, the estate typically transfers to the couple’s children.
Couples that want a joint will usually assume that this kind of will is easier and less costly than having two individuals wills since they want the same things anyways.
Regrettably, this does not take in to account how courts and some states see these wills, or the challenges having a joint will creates, since joint wills for married couples usually make things complicated for the surviving spouse.
The Problem with Joint Wills
Having a joint will is problematic for a lot of reasons:
- Joint wills are illegal in some states.
- A lot of probate judges do not appreciate joint wills and usually separate the will for each spouse, or even nullify the joint will.
- These wills are like an irrevocable agreement—after the first spouse passes away, the second spouse is unable to alter the joint will even when circumstances have changed.
- The lack of ability to alter a joint will following the first spouse passing away might have property and assets delayed for years, so the surviving spouse is unable to downscale the marital home, or put is up for sale to pay for expenses or assisted living.
- Failing to have individual wills stops the surviving spouse from switching beneficiaries, so should that spouse get remarried, their new husband or wife and stepchildren are unable to inherit assets named in the joint will.
- Since a joint will for married people is irrevocable, following the first spouse passing away, the surviving spouse is unable to disinherit anyone and cannot put money in a trust for an adult child that spends money haphazardly.
- It doesn’t enable the surviving spouse to change executors or beneficiaries, add new beneficiaries that were born after you created the will, or authorize beneficiaries to get their inheritance more quickly.
The Case for Separate Wills
Whereas you and your spouse can modify your joint will throughout your lifetimes, following the first spouse passing away, the joint will becomes irrevocable. Individual wills and trusts provide more adaptability than a joint will.
In individual wills or “mirror wills,” each spouse is able to have matching terms if they wish to, but following the first spouse passing away, the surviving spouse can change their will that reflects any changes in their lives, like having new grandchildren, remarrying, and new stepchildren.
With individual wills, the spouses can have terms that aren’t matching, although spouses should decide on the same guardian for their children should they both pass away at the same time.
In that uncommon situation, when there’s challenges between the wills, a court is going to have to pick the guardian, so it’s vital for spouses to talk about these terms prior to making individual wills that don’t match each other. Be sure you talk about your estate with an attorney or with a legal service online when creating your wills.
Updating Your Will
Creating a will isn’t hard but it needs to meet your state’s requirements, or a court could nullify it. Every state has different laws, so you are going to want to guarantee that you create your will in compliance with your state’s laws.
After you have created a will, it’s wise to review it every couple of years since there are situations where you are going to want to update it. Some situations for updating your will include when you have new children or grandchildren, when you wish to disinherit someone or switch the guardian, one of your beneficiaries is no longer living, or you have got a divorce.
It’s vital to have an attorney alter your will since you can’t simple cross out things in the original will—you are going to need a codicil, in which is an amendment to your will—or a newer will replacing the old one. In a lot of cases, creating a new will is better than adding a codicil since codicils usually cause confusion.
Even when you want to take out a beneficiary, it’s best to create a new will so there’s no proof of the prior beneficiary. Without creating a new will in this situation, the beneficiary that has been taken may want to challenge a codicil taking them out. The same holds true concerning changing executors—it’s best to create a new will so the initial executor’s name doesn’t show up anywhere.
Because of the problems immanent in a joint will, it’s clear why courts dislike them and why attorneys do not suggest them. There are better alternatives for you and your spouse to bequeath your assets, like creating mirror wills, individual wills with different terms, trusts, or individual wills with a trust. Any of these choices are better than creating a joint will, since there’s no guarantee a court is going to uphold your joint will, whereas the other alternatives are going to give you peace of mind that a court is going to follow your wishes.
The case against Joint Wills for married couples. LegalZoom. (n.d.). Retrieved February 16, 2023, from https://www.legalzoom.com/articles/the-case-against-joint-wills-for-married-couples
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