Once in a while a married couple will ask me about joint wills. A joint will is a single document signed by two people, usually leaving all of their assets to each other. When the surviving spouse dies the assets are then left to the children. Seems simple, and the easiest way draft an estate plan. This strategy it’s almost always a never a good idea.
Problems with Joint Wills
Since joint wills are binding contracts between two people, it is almost impossible to change the terms after the first spouse has died. Also, most joint wills have provisions disallowing either spouse to make changes on their own. This could potentially lead to problems if one spouse loses mental capacity and is no longer has the ability to enter into contracts, such as wills. Joint wills were commonplace years ago. Today however, people live much longer. A surviving spouse may live years or decades after their spouse dies. Or someone may live years or decades after the onset of dementia.
Examples of Issues With Joint Wills
In view of the near impossibility for the surviving spouse to change the terms of the will, she or he can’t react to changed life circumstances. Below are some examples of what a surviving spouse may not be able to do under a joint will:
- Change a beneficiary and/or personal representative (executor)
- Sell the house, even if you need to move to an assisted living facility or nursing home.
- Help a child with the purchase of a home or business by giving them their inheritance early.
- Give money to a grandchild to help with college.
- Restrict the inheritance of a child who has addiction, bankruptcy, or spending issues.
- Change the will if locating to another state.
- Sell or give away other assets mentioned in the will.
Alternatives to Joint Wills
I can understand, before computers; and before people lived as long as they do; how joint wills achieved many families’ estate planning goals. Nowadays, it’s a potential disaster. If the surviving spouse desires to change the terms of a joint will, she or he will have to contest it in probate court. Exactly what you don’t want.
Having separate mirror wills is a more cost effective option. Computers and software make everything easier. Also if you have minor children consider mirror wills with mirror residuary trusts. Other options are revocable trusts as well as joint trusts.
If you have a joint will, and you’d like an estate plan audit and evaluation, please schedule a meeting.
This article is for informational purposes only and does not constitute legal advice about your case or situation. There may be exceptions to the information outlined above. Please consult an attorney if you have specific questions about your estate or a decedent’s estate.