A joint will is a testamentary instrument for two individuals in the same document. These types of wills are sometimes drafted as joint and mutual wills. In the United States, joint wills may be used by married couples to pass their estates using identical provisions for each spouse. In most joint wills, a husband and wife bequeath all their property to each other. Upon the death of the surviving spouse, the surviving spouseís property passes according to provisions that were agreed upon by both spouses and contained in the joint will executed by both of them. There are many potential problems with joint wills and mutual wills, as discussed below. Joint wills are known to be particularly problematic when stepchildren are involved or there are children from a previous relationship. See
Blended Families. If you are considering a joint will or already made a joint will, you may want to discuss these issues with an estate planning lawyer.
Joint wills often provide that upon the death of the surviving spouse, all their property shall pass to their
children. Although both spouses can agree to change or revoke the joint will while they are both living, in some jurisdictions the surviving testator may be prevented from changing the joint will or making a new will after the first testator dies, depending on provisions of the document and state law. As for how estate administration will be handled, a joint will may be admitted to probate when the first spouse dies and again upon the death of the surviving spouse, depending on the circumstances and applicable probate laws.
Joint Wills and State Law
To determine how estate property will be distributed under a joint will or mutual wills, applicable state law must be carefully considered. Laws on joint and mutual wills are different from state to state. Some states may allow a joint will to be revoked by either testator at any time, even after the death of the first spouse. Joint and mutual wills are not recognized in some states. Making a joint will could result in Will and Trust Disputes, especially if your heirs go to court over whether your will is revocable. If an heir is disinherited because a joint will was revoked by the surviving spouse, it could lead to a lawsuit over who has the right to inherit the estate. To find state laws on the requirements to make a valid will and trust, go to state laws. Consult an attorney about whether a joint will is enforceable in your state.For information on other types of wills, such as basic wills, handwritten wills, and pour-over wills, review our section on Types of Wills.
Disadvantages of Joint and Mutual Wills
There are many disadvantages to using a joint will instead of making your own individual will. When a joint will is part of the estate plan, the surviving testator may live for many years after the first testatorís death. If you make a joint will with your partner and they outlive you, it is important to consider what could happen with the property in your estate once your surviving partner has control of it. It is probably impractical to bind the surviving testator to a joint will or mutual wills that cannot be revised to correspond with changes that are almost certain to occur over the course of oneís lifetime.For example, if the surviving spouse experiences a major life change such as remarriage, a move to another state or the death of a child, the existence of a joint will may make it impossible for the surviving testator to amend their estate plan to address these changes. Also, if the surviving spouse needs to sell property that is ultimately bequeathed to other heirs in the joint will, the surviving spouse may be unable to sell such property, resulting in a financial crisis for the surviving spouse. Rising long term care expenses may create an unforeseen need to sell property otherwise intended to be left to the heirs.Another disadvantage is joint wills frequently result in costly probate litigation. A good example of this is the case of York v. Toone, a 2019 case in the U.S. District Court for the Western District of Texas. In this case, a husband and wife made a joint and mutual will. Thereafter, the wife predeceased her husband. She had children from a prior marriage. Her surviving spouse inherited all her separate and community property. He then revoked the joint will they made together and disinherited her children from the prior marriage. This case illustrates how a joint and mutual will may nevertheless result in one spouse's estate plan being disregarded and a family being subjected to estate litigation.If each spouse wants to make a will with provisions that mirror their spouseís will, they can do this in their own individual will without using a joint will. One reason a married couple may want to make a joint will is they want assurance that all marital property or community property will be passed to their children after the surviving spouse dies. But as we know from frequent litigation over these types of estate planning methods, a surviving partner does not always honor promises made about what they will ultimately leave to a particular heir or beneficiary. Related articles:
deceased parents will.A husband or wife may have legitimate concerns that the surviving spouse will disinherit one of the children in favor of someone else or leave the estate to a church or charity. However, there are better estate planning methods other than joint wills that can be used to ensure each spouse's property is distributed according to his or her wishes.
Can We Save By Making a Joint Will?
You may be interested in making a joint will because you think it will cost less money to have a lawyer draft only one will instead of two. But when a will is drafted for two people, the attorney still must render advice regarding the estates of both individuals, so any cost savings from using a joint will is likely to be minimal. Also, any money you save by using a joint will is likely to be outweighed by the problems that may arise with your estate later, including legal fees, as a result of using a joint will. Before making a joint will or mutual wills, consult an estate planning attorney. For information on how to make your own will or living trust, review our list of Will and Trust Books.
Is a Joint Will a Contract?
The provisions contained in a joint will vary depending on how the document is drafted. Some joint wills and mutual wills contain specific language intended to make an enforceable contract. For example, a joint will may include a clause that states, we jointly and mutually agree to enter into a contract to make this will and not to revoke it. Depending on the state, a court may decide that a joint and mutual will constitutes an enforceable contract not to revoke it. Conversely, the laws of some states provide that the execution of a joint will or of mutual wills does not create a presumption of a contract not to revoke the will or wills. If you want to know if a joint will or a mutual will can be revoked under the laws of a particular state, consult a
probate lawyer.Copyright 2020 Pennyborn.com. ALL RIGHTS RESERVED.Updated on September 6, 2019.
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