Whereas a joint will might seem handy, they come with a lot of possible problems and dangers.
A joint will (a single will for married couples) might sound like a good idea—nevertheless, if you and your spouse have identical wishes for what you want to happen to your property after you pass away, why not sign a singular document and be done with it?
Nowadays, joint wills for married couples are deemed as problematic, and estate planning lawyers seldom recommend them. The below is a summary of why.
“A joint will is not a nuanced solution … It might prove to be so inflexible that the surviving spouse faces unanticipated results.”
What Is a Joint Will?
A joint will is a single will signed by two individuals, typically a married couple, that establishes how to distribute the spouses property following they have both passed away. Usually, a joint will includes terminology that makes it irrevocable after the passing away of a spouse—meaning that when one of the spouses passes away, the will can no longer be altered by the living spouse. This is the factor making joint wills so questionable.
Mirror wills (also referred to as reciprocal wills), dissimilar to joint wills, are individual documents. Through mirror wills, each spouse in the relationship creates an individual will, but the wills include reciprocal or “mirror” terminology. (Simply put, the husband gives property to his wife, while his wife gives the same property to her husband. If they are a married couple that has children, usually both wills also declares that their children are going to receive the leftover property after both spouses have passed away.)
Mirror wills can now and again also include an agreement among the spouses that neither of them is going to rescind their personal will. (And at one time, courts have previously taken for granted such an agreement even when the wills are devoid of this explicit terminology.) When a mirror will is irrevocable through this way, it is also going to suffer from many of the issues discussed below.
The Issue Concerning Binding Joint Wills
As a starting issue, joint wills just are not legal in some states. Through those states, if you create a joint will, the court is going to attempt to separate it into two separate wills.
The primary issue with joint wills is that they bind the hands of the living spouse. This is also what makes it appealing to some. For instance, if you’re concerned that after you pass away, your spouse could get remarried and then give away your property, you might be thinking about an irrevocable joint will.
But joint wills are not a subtle solution to this issue. It could prove to be so unadaptable that the living spouse faces unexpected results. For instance:
- You may not be able to sell or transfer property throughout your lifetime, even when you need the funds due to a changed financial situation or medical circumstance (in other words, to pay for hospice care, assisted living, or a retirement home).
- You are not going to be able to create a trust for the property specified in the will, even should it suit your circumstances better.
- You’re going to be able to take out or add beneficiaries. For instance, when you become estranged from relatives, or when someone no longer requires the money, you won’t be able to take them out of the joint will. And when you become close to someone that was not previously in the will, you are not going be able to add them.
- When one of your beneficiaries requires money sooner, you might not be able to use the assets provided for in your will.
Instances of Joint Will Issues
For instance, April and James make a joint will that is going to leave their assets to their children. Regrettably, after James dies, their daughter Sophia proves to be in appropriately suited to managing her own money and accrues tens of thousands in credit card debt. April would like to make a spend-thrift trust for Sophia, instead than giving her the money outright upon her passing, but she can’t alter the joint will.
For instance, April and James make a joint will that leaves their home to James’ children from a prior marriage. When she turns 70, April decides she wishes to move into a smaller house, but she may be unable to sell her present house to pay for it since James’ children might have a claim to the house.
Additionally, the probate process for a joint will can also be more complex, which can result in costs and postponements. Generally, joint wills simply create more disorder and family conflict, in which is going to cost time, money, and distress.
Alternatives to Joint Wills
What is the best kind of will for spouses, when not a joint will? Couples should create separate, individual wills that can be revoked, so that they stay flexible as situations change.
A lot of different kinds of trusts can address circumstances such as this, and with more accuracy than joint wills.
Jennie Lin, A. (2017, February 1). Joint wills for married couples. www.nolo.com. Retrieved November 9, 2022, from https://www.nolo.com/legal-encyclopedia/question-joint-will-spouse-28108.html
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