A joint will is a will that two or more people make together, rather than each making their own will individually. In practice, a joint will is typically created and signed by a married couple in order to dispose of property that they own together. This may seem like a good idea: why write two wills when you can simply write one together? However, joint wills can raise potential complications.
Couples often create joint wills to prevent each other from changing their mind after the first spouse dies. It is important to note that a joint will shall only be binding on the parties if the document contains an express statement that the will is intended to constitute a contract. Simply using pronouns such as “we”, “us” and “our” in making dispositions under a will created by two people may not prevent the surviving spouse from revoking the will. In contrast, revocation of a joint will with the proper contractual language in place requires an agreement of the parties while they are both alive.
Problems with joint wills arise when one spouse dies prematurely. If the surviving spouse remarries or has subsequent children, he or she may want to include them in a new will. Similarly, a child of the deceased spouse may abandon the surviving spouse, who no longer wants to include him or her in the will. Finally, the original will could become so outdated that its provisions are no longer practical. In these situations, the surviving spouse will likely have difficulties changing or updating the will, and this could result in expensive attorney fees.
The same aspect of a joint will that can be disadvantageous, specifically its inability to be changed without the consent of both parties, can also be beneficial in some instances. A common example of a joint will being beneficial is for couples who marry late in life and where one or both parties have children from prior marriages. If both spouses bring assets to the marriage, both will likely want their children to have a share of the estate. One concern with creating reciprocal wills is that the surviving spouse could change his or her will and disinherit the children of the deceased spouse. A joint will can help to ensure that children of both spouses share in the estate, as originally intended.
Deciding whether a joint will is a good idea for you and your spouse can be complicated and will depend on the facts of your particular situation. Legal issues involving joint wills are almost always complex and will require the help of an Estate Planning Attorney.
Our firm can assist you with making sure that you have a sound estate plan in place. Please feel free to contact our office for an appointment.
