This article explains what a joint will can do, the potential problems these three types of joint wills present for the surviving spouse and family members, and better options for achieving the same goals.
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Types of General Wills
There are several types of wills, including:
- The traditional last will and testament can be simple or complex depending on the needs of the testator. This will is the most commonly used to transfer property to beneficiaries and to name a guardian for children. More complex wills include a testamentary trust that establishes and funds a trust upon the death of the grantor.
- A pour-over will that transfers assets after death into a trust
- A deathbed will (written or spoken) may be accepted by the probate court if a person’s life is in imminent danger.
A joint will is a form of the last will and testament that applies to two (or more) people, usually a married couple. There are two other, related types of wills: mutual wills and mirror wills.
Three Types of “Joint” Wills
A joint will, mutual wills, and mirror wills all seek to do the same thing — transfer an entire estate to a surviving spouse when the first spouse dies. Upon the death of the second spouse, the couple’s children inherit everything. This type of will is usually drafted for a married couple/
A joint will is a single document executed for two (or more) people. A joint will is different from a typical last will and testament in that it can’t be changed or revoked without the permission of the other person. After the first spouse’s death, the surviving spouse cannot revoke or change anything about that will. Even if the surviving spouse remarries, the terms of the joint will remain unchanged and the surviving spouse must comply with them.
Mutual wills are two identical wills with a legally binding addendum (called a codicil) that explains how property will be distributed. These wills also cannot be changed or revoked without the consent of both spouses or changed after the death of the first spouse.
Mirror wills are two, usually identical individual wills that mirror each other in distributing assets to the surviving spouse. The difference between mirror wills and mutual wills is that a mirror will can be changed later as circumstances change.
Why Do People Create Joint Wills?
It was thought that joint wills saved time and money. Because the goal was to pass a simple estate to a spouse and then children, people felt it was more cost-effective to ask an estate planning attorney to draft just a single, simple will.
Unfortunately, the surviving spouse and loved ones would often suffer unexpected consequences as life goes on and circumstances change.
The Many Potential Problems of Joint Wills
Joint wills are rarely used today because there are far more potential problems than advantages. Some states don’t allow the use of a joint will (check your state’s law). Joint wills can be so problematic that some probate court judges will invalidate a joint will or will separate the will for the two parties.
The big problem is that joint wills lack flexibility.
The surviving spouse cannot change the terms of the will, regardless of the changed circumstances after the death of his or her spouse.
- If the surviving spouse remarries and wants to leave some of the assets to a stepchild in their new blended family, the joint will prevents it. Likewise, they can’t leave any of those assets to their new spouse.
- If the surviving spouse wants to disinherit an adult child, they can’t.
- If the surviving parent wants to move assets into a special needs trust to provide for a disabled child’s needs, they can’t. If as an adult, a child has a problem with drugs, alcohol, or gambling and the surviving parent wants to set up a spendthrift trust to protect their inheritance from being wasted, they can’t. Or at least they can’t with the assets from the first marriage.
- If the joint will says a house passes to an adult child who was an only child when the will was written, but not the only child at the death of the first parent, the other child has no share in the house. And what if the surviving spouse needed to sell the house? The property is tied up by the will.
The surviving spouse may be tied up by the terms of the joint will for a long time, perhaps for decades.
Alternatives to a Joint Will
The simplest alternative to a joint will is two separate wills, one for each partner in the couple. The more flexible mirror wills may be an option.
Some assets can be transferred without making a will, such as bank accounts, life insurance policies, and the deed to a home. A transfer-on-death bank account immediately transfers the account to the named beneficiary. A joint tenancy deed with rights of survivorship automatically transfers a home to one’s beneficiary. The payout from a life insurance policy goes directly to the loved one named as a beneficiary.
Legal Documents Can Be Done Affordably
It’s easy and cost-efficient to make separate wills using online willmaker assistance, such as the estate planning package offered at FindLaw. The forms can be customized for your specific estate and situation.
If you have more complex needs, like a special needs child or an elder who will need long-term care, get legal advice about wills and trusts that can accomplish your goals. Law firms that specialize in estate planning can provide you with a number of options that will work, in a variety of cost ranges. Contact a local estate planning attorney to learn more.
