A joint will is the will of two people contained in a single document. Typically, a husband and a wife will execute a joint will. Joint wills have various advantages and benefits depending on the aims and goals of the parties involved.
During the course of a marriage, a couple acquires real property and personal property. Real property consists of real estate, homes, and land. Personal property includes cash, jewelry, and items of furniture, among other things. A couple may also accumulate debt, unpaid taxes, and unpaid bills. The sum of all of the property and all of the debt is known as the estate.
A joint will is a valuable estate planning tool. Estate planning is arranging for the distribution of one’s property upon death. Spouses may seek estate planning methods that keep property within a family. Creating a joint will allows for this. If a couple executes a joint will, when one spouse dies, the other automatically inherits the entire estate upon that death. When the remaining spouse dies, the remainder of the estate will go to the couple’s children. The couple’s children are the beneficiaries of the will.
A joint will has advantages. Since a joint will allows for the estate to pass first to the other spouse and then to the children, a joint will prevents the estate from passing to someone unrelated to the family. Spouses can mutually consent to revoke a joint will during their lifetime.
Joint wills pose a number of disadvantages. A joint will is considered a legally binding contract. When one spouse dies, the surviving spouse, under the contract, remains bound by the terms of the will and may not alter or revoke it. The surviving spouse may not alter the will even to leave an inheritance to a spouse they remarry, or to the spouse’s children. The surviving spouse also may not remove any property in the joint will and put that property into a new or different will. Nor may the surviving spouse sell any joint will property, since that property, by law, is to go to the couple’s children.
Joint wills offer other additional disadvantages. When one spouse dies, the remaining spouse may, for whatever reason, seek to disinherit one or more children. The terms of the joint will cannot be changed when the first spouse dies. This means the child the surviving spouse may wish to disinherit, inherits over that spouse’s objection.
In addition, if spouses execute a joint will at a relatively early age, and one spouse dies early into the marriage, the surviving spouse is “stuck” with the terms of the joint will for the rest of that spouse’s life. This reduces estate planning flexibility.
Joint wills are sometimes not recognized by all states because these wills interfere with the surviving spouse’s right to distribute the estate as they see fit. For example, the state of WIsconsin does not allow joint wills. A Wisconsin probate court (a court that oversees the distribution of an estate) will, instead of probating the joint will, attempt to separate the document into two discrete, separate wills. This can be complicated and time-consuming.
In some states, a probate court (a court that oversees the distribution of the estate) may permit the surviving spouse to no longer be bound by the terms of the joint will. This allows that spouse to distribute the estate as they deem proper.
One of the purposes of a joint will is to ensure the couple’s children receive the remainder of the spouse’s estate. This purpose can instead be accomplished by establishing a trust. When the couple executes the trust, the couple can attach restrictions on how the surviving spouse can use the money. In the trust, the couple can also include specific provisions as to what child receives what property once both spouses have died. The terms of the trust may be modified when both spouses are alive. The terms of the trust may also be modified after one of the spouses has died. The trust can be revoked altogether by the spouses.
Using a trust instead of a joint will allows for individuals to be disinherited, and for stepchildren and individuals whom the spouses remarry, to receive a distribution. In the event a child dies (predeceases) one or both spouses, the terms of the trust can be changed to account for the death. For example, the trust terms can be changed to permit one or more of the remaining children to receive a larger portion of the estate.
If you and your spouse seek to draft a joint will, you should contact a wills, trusts and estates lawyer. This attorney can explain the advantages and disadvantages of a joint will. The attorney can assist in the drafting of the joint will if the parties insist on one. The attorney can also draft an alternate document, such as a trust, that serves the purposes of a joint will without its inflexibility. The attorney can also represent you in court if there is a dispute over a joint will or a trust.