If you and your spouse or any other close companion are considering having wills, one of the options you might consider is a joint will. It allows both of you to use it as your own will but still ensures that if you die before your spouse, your spouse can distribute your property according to your agreed-upon wishes when they die.
Jump ahead to these sections:
- What’s a Joint Will?
- What to Consider Before You Choose a Joint Will
- How Do Joint Wills Work After Someone Dies?
- Joint Wills: Frequently Asked Questions
Many years ago, before the introduction of personal computers and the Internet, joint wills were a viable option for many married couples. Using one joint will was faster, easier, and cheaper than typing two individual wills. These days, those types of factors are practically irrelevant to your consideration of what type of will to use.
With online will drafting and the technology becoming available to edit quickly and concisely, joint wills have become a less popular option, even in the most carefully considered estate plan. Fortunately for you and your loved one, there are much more effective options available.
What’s a Joint Will?
A joint will is a legal document that two people (usually a married couple) use as their last will and testament. Each of their wills is combined into one document that serves as one will for both spouses.
In a joint will, both spouses agree to the same terms in the will and commit to distributing their property upon death in the same way. They will agree on the following:
- The first spouse to die leaving their estate to the surviving spouse
- The identity of the person or persons who will receive their property when both spouses die (called the beneficiaries)
- The property that will be distributed
- The person who will handle their estates when they die (called the executor)
- Any other specific requests or directives provided for in the will
Normally, this involves both spouses agreeing that, upon death, they will pass their property to the other spouse who survives and that when the surviving spouse dies, they will pass their property to their children. Although this may provide a simple and efficient way to leave property to your children when both spouses die, most estate-planning attorneys discourage the use of a joint will because of its many disadvantages.
If you are considering using a joint will, you should discuss your goals and circumstances with an estate-planning attorney to be sure you are someone who will benefit from using a joint will.
Who usually uses a joint will?
Not every state enforces joint wills. People who use joint wills usually live in a state that authorizes their use and enforces them when they are filed in probate court. Probate court is the court that gives a “legal stamp of approval” on the will and makes sure that the wishes of the person who signed the will (called the testator) are carried out.
Even if you live in a state that honors joint wills, a joint will is only effective for two people who wish to dispose of their property upon death in the same way and to the same beneficiaries. It is usually a married couple who considers a joint will because they share the same property and are more likely to agree on who the beneficiaries of their property should be. This is most often their children.
You do not have to be married to use a joint will. Any person who is at least 18 years of age and of sound mind is qualified to have a will. However, if a joint will is going to be effective, the two parties who use it together must agree to all the terms of the will and understand that a joint will can never be changed or revoked after one of the parties dies.
Difference between a joint will and an individual will
An individual will is a separate legal document in which one individual disposes of their property upon death. A joint will is simply two individual wills that are combined into one document because they both contain the exact same terms.
Despite the similarity of the two wills combined in a joint will, there is one critical difference between the individual wills that are combined and the joint will that combines them.
An individual will may be amended or revoked before the person who wrote the will dies. In a joint will, if one of the parties dies, the surviving spouse may not revoke the will or alter the terms of the will in any way. A joint will basically serves as a legal contract between the spouses that they will dispose of their property according to the terms of the joint will.
What to Consider Before You Choose a Joint Will
The most important thing to consider before you choose a joint will is that after you or your spouse dies, the will of the surviving spouse becomes irrevocable, which means that it cannot be amended. This is an important consideration because the surviving spouse may live for a long time after the other spouse dies. If you are the surviving spouse, your circumstances could change in a way that would make you want (or need) to change your will.
- You may wish to change the beneficiary if the named beneficiary dies or is no longer appropriate
- You may wish to name a new executor
- You may need to sell your house or other property to pay for medical needs, long-term care, or assisted living
- You may have grandchildren to whom you wish to leave property that is already included in your irrevocable will
- You may remarry and wish to leave property to your new spouse that is already included in your will
If any circumstances change for which you would like to change your will, you would not be able to address those changes in your joint will. It will be irrevocable once your spouse dies.
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Possible advantages of a joint will
If you live in a state that recognizes joint wills and agree with your spouse to distribute your respective estates the same way, there are some minor benefits to be gained by having a joint will. For example:
- If you die before your spouse and your spouse inherits your property, a joint will guarantees that when your spouse dies, they will dispose of your property according to your wishes
- When you or your spouse dies, a joint will guarantees that the surviving spouse will be provided for in the will
- With a joint will, you only have to execute one document, which can be cheaper, faster, and easier than witnessing and executing two individual wills
Possible disadvantages of a joint will
Despite the few advantages that a joint will offers, there are several disadvantages that can typically outweigh the benefits of using a joint will. For example:
- When the first spouse dies, the surviving spouse’s will becomes irrevocable and cannot be amended or revoked.
- The personal and financial circumstances of the surviving spouse may change before they die. For example, a surviving spouse may want to change a beneficiary or make a disposition of property that is already accounted for in the will.
- A joint will is not valid in every state. If you have a joint will and move to a state that does not enforce joint wills, the court may not accept your will when you die.
How Do Joint Wills Work After Someone Dies?
Many people consider a joint will because they think it only gets probated when both spouses die. This is in fact, not the case. A joint will serves as the valid will of both individual spouses. So even when the first spouse dies, the will must be probated.
The probate court will distribute the decedent spouse’s property to the surviving spouse, and when the surviving spouse dies, the will must be probated again. The court will then distribute the second spouse’s property to the agreed-upon beneficiaries named in the will.
Joint Wills: Frequently Asked Questions
If you are considering a joint will, you may have some basic questions for an estate-planning attorney. Here are some of the most common questions that clients ask and the typical answers to these important questions:
Can one person change a joint will?
A joint will is like a contract between the spouses who execute it to distribute their property in a certain way. A contract can always be amended or revoked when all of the parties are alive and agree. So a joint will can be changed if both parties agree on the change.
However, once one of the spouses dies, it is no longer possible for the surviving spouse to change the will. Any change to the will requires the consent of both parties.
If you aren’t married, are there any other reasons you may use a joint will?
You do not have to be married to have a joint will. Anyone who is at least 18 years old and of sound mind may wish to have a joint will with another relative, lifetime partner, or loved one to whom they want to leave their property if they survive.
Any two parties can agree on the beneficiary who will receive all of their property when both parties who sign the joint will are deceased.
Are there any other will types that might be suitable for married couples?
There are alternative wills available that can accomplish the estate planning goals of both parties without the disadvantages that accompany a joint will. Similar to a joint will is a mirror or reciprocal will.
Like a joint will, a mirror will can accomplish the same passing of property to the other party upon death and then leaving all the property to a named beneficiary when both parties die. However, unlike a joint will, a mirror will requires that each of the two parties execute their own, separate wills.
Each will simply provides for the same disposition of property. In this way, when one party dies, if circumstances for the surviving spouse change and the survivor needs to amend their will, they are free to do so before they die.
An effective non-will option for accomplishing this type of distribution of property is a trust. A trust is not a will and does not get probated. Instead, someone named in the trust (called a trustee) is required to administer the parties’ estates according to their wishes. A trust provides many other advantages that a joint will does not offer.
If you are considering a joint will, you should speak to your estate planning attorney about whether a mirror will or a trust is a better option to accomplish your estate-planning goals.
Make Sure a Joint Will is the Right Will for You
There was a time when joint wills were an inviting option for spouses who had simple estates and agreed on the disposition of their property. A joint will can be a simple and effective way for two parties to dispose of property upon death.
However, thanks to the creation of other legal documents such as a mirror will or a trust, these types of instruments can give a married couple the flexibility to make any changes that arise even after the death of a spouse. A joint will does not offer the ability to make changes after one spouse dies.
A joint will may be right for you but be sure to speak to your estate planning attorney about all your options before choosing a joint will.