A will transfers property to beneficiaries and names guardians for minor children. But what is a joint will? And are there better alternatives to joint wills?
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What Is a Joint Will?
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.
This article explains what a joint will can do, the potential problems joint wills present for the surviving spouse and family members, and better options for achieving the same goals.
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. These types of wills are executed for two (or more) people, usually a married couple.
- A joint wills differ from a typical last will and testament in that it cannot be changed or revoked without the other person’s permission. 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 follow them.
- Mutual wills are two identical wills with a legally binding addendum (called a codicil) that explains how to distribute the property. These wills cannot be changed or revoked without both spouses’ consent, and the surviving spouse cannot amend the will after the first spouse’s death.
- 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 you can change a mirror will as circumstances change.
Why Did People Create Joint Wills?
People used to think 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 lawyer to draft just a single, simple will.
Unfortunately, the surviving spouse and loved ones often suffer unexpected consequences as life goes on and circumstances change.
The Potential Problems of Joint Wills
Because there are far more potential problems than advantages with joint wills, they are becoming outdated. The most frequent issues with joint wills are that:
States May Not Allow Joint Wills
Some states do not allow the use of a joint will, so check your state’s law. Even if a state permits joint wills, the wills can be so problematic that some probate court judges invalidate joint wills or separate the will for the two parties.
Joint Wills Lack Flexibility
The surviving spouse cannot change the terms of the will, regardless of the changed circumstances after the death of their spouse. For example:
- If the surviving spouse remarries, the joint will prevents them from leaving any of the assets to a stepchild in their new blended family. Likewise, they cannot leave any of those assets to their new spouse.
- The surviving partner cannot disinherit an adult child.
- The surviving partner cannot move assets into a special needs trust to provide for a disabled child’s needs.
- The surviving spouse cannot set up a spendthrift trustfor an adult child with a drug, alcohol, or gambling problem. The parent must set up this kind of trust with assets that do not come 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 first parent’s death, the other child has no share in the house. And what if the surviving spouse needed to sell the house? The will ties up the property.
Joint wills are problematic for both probate courts and the surviving spouse. The surviving spouse may need the assets tied up by the terms of the joint will.
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 are also an option. Essentially you create a will for each partner reflecting the same provisions. However, not everyone is the same, so that you may opt for two separate wills addressing each partner’s situation.
There are other methods to transfer property beside a will. You can transfer some assets outside of a will, such as bank accounts, life insurance policies, and the deed to a home.
- You can assign a payable-on-death beneficiary for all your bank accounts, which will immediately transfer assets upon your death.
- A joint tenancy deed with rights of survivorship or a transfer-on-death deed 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.
- There are many types of trusts to help your loved ones avoid the probate process.
Create Your Own Separate Wills
Not only are separate wills a better alternative to joint wills, but you can also save time and money with online willmaker services. FindLaw has state-specific last will and testament forms that are easy to use and quick to complete. You can make a will for your specific situation and needs.
If you have more complex needs, like a child with needs child, seek legal advice from a local estate planning attorney.
However, your last will and testament is just one legal document in a comprehensive estate plan. You should also plan ahead for medical emergencies with a health care power of attorney, and living will and ensure your financial affairs are in safe hands with a financial power of attorney.