A joint will refers to a single document containing the wills of two people, typically a married couple.
Why Are Joint Wills Made?
Throughout a marriage, a couple acquires both real and personal property, such as real estate, homes, land, cash, jewelry, furniture, and more. In addition, they may accumulate debt, unpaid taxes, and bills. The sum of all this property and debt is known as the estate.
A joint will serve as a valuable estate planning tool, which involves arranging to distribute one’s property upon death. Spouses may use estate planning to keep property within the family, and a joint will allows for this.
When one spouse passes away, the other inherits the entire estate. Once the surviving spouse dies, the remainder of the estate goes to the couple’s children, the will’s beneficiaries.
What Are the Advantages of Using Joint Wills?
Joint wills provide some advantages, such as preventing the estate from passing to someone unrelated to the family. Spouses can also mutually agree to revoke a joint will during their lifetime.
Preserving Family Wealth
Imagine a married couple, John and Jane, with two children, Alice and Bob. John and Jane have built a successful family business and accumulated significant wealth, including a large house, cash savings, and other valuable assets. They want to ensure that, after their deaths, their estate remains within the family, benefiting their children and future generations.
To achieve this goal, John and Jane create a joint will, which specifies that when one dies, the surviving spouse will inherit the entire estate. Upon the surviving spouse’s death, the estate will be divided equally between Alice and Bob. This arrangement helps to protect the family’s wealth by preventing the estate from passing to someone unrelated to the family, such as a new spouse or an unrelated beneficiary.
For example, if John dies first, Jane would inherit the entire estate. If Jane later remarries, her new spouse would not be entitled to any of the estates because the joint will specifically outline that the estate will go to Alice and Bob after Jane’s death. This ensures that the family wealth remains within the family, as John and Jane had intended.
Moreover, if John and Jane decide to change the terms of the joint will at some point during their lifetimes, they can mutually agree to revoke it and create a new will that better reflects their current wishes. This flexibility allows them to adapt their estate planning to suit their evolving needs and preferences.
What Are the Disadvantages of Using a Joint Will?
Joint wills have several disadvantages, including that they are legally binding contracts.
When one spouse dies, the surviving spouse remains bound by the terms of the will and cannot alter or revoke it. This means the surviving spouse cannot leave an inheritance to a new spouse or their children, nor can they remove any property in the joint will for a new or different will. Additionally, they cannot sell any joint-will property, as it is legally designated to the couple’s children.
Joint wills also pose other disadvantages, such as limiting the surviving spouse’s ability to disinherit one or more children, even if they want to do so. Furthermore, if a joint will is executed at an early age and one spouse dies early into the marriage, the surviving spouse’s estate planning flexibility is reduced.
Not all states recognize joint wills, and some probate courts may attempt to separate a joint will into two separate wills, which can be complicated and time-consuming. In some states, a probate court may permit the surviving spouse to no longer be bound by the terms of the joint will, allowing them to distribute the estate as they see fit.
Is there an Alternative to a Joint Will?
Trusts as an Alternative to Joint Wills (Understanding Trust Flexibility)
A trust is a legal arrangement where one person (the trustee) holds and manages assets for the benefit of others (the beneficiaries).
Trusts can be an alternative to joint wills, offering more flexibility for couples looking to distribute their estate after they pass away.
- Modifications and Revocations: Unlike joint wills, which are legally binding and cannot be changed once one spouse dies, trusts allow both spouses to modify or revoke the trust terms during their lifetimes. This means they can update the trust to reflect changing circumstances or preferences, providing more control over their estate planning.
- Provisions for Stepchildren or New Spouses: Trusts can include specific provisions that address the needs of stepchildren or new spouses. This flexibility allows a couple to ensure that the people they care about, including those who join the family after the trust is created, can receive a portion of the estate.
Trust Adjustments in the Event of a Child’s Death
If a child passes away before one or both spouses, the terms of the trust can be changed to account for this unfortunate event. This adaptability is another advantage of trusts over joint wills, which cannot be altered after one spouse dies.
The couple can decide how to redistribute the deceased child’s estate portion by updating the trust. For example, they might choose to:
- Divide the deceased child’s share equally among the remaining children, increasing their estate portions.
- Allocate the deceased child’s share to a specific purpose, such as funding education for grandchildren or donating to
- an important charity for the child.
Add a new beneficiary, such as a stepchild or a child from a new marriage, to receive the deceased child’s share.
Trusts offer greater flexibility than joint wills, allowing couples to modify, revoke, or adjust the trust terms to accommodate changing family dynamics and individual needs. This adaptability ensures that a couple’s estate planning can evolve to serve their family best and loved ones.
Do I Need the Help of a Lawyer to Draft a Joint Will?
If you and your spouse are considering drafting a joint will, it is advisable to consult a will lawyer. An attorney can explain the advantages and disadvantages of a joint will and assist in drafting one if desired. Alternatively, an attorney can draft another document, such as a trust, that achieves the purposes of a joint will without its inflexibility. An attorney can also represent you in court if there is a dispute over a joint will or trust.
How Can LegalMatch Help?
LegalMatch is an online legal services platform that can connect you with experienced attorneys who handle wills and trusts. Using LegalMatch, you can submit your case details and get matched with attorneys in your area with the knowledge and experience to handle your legal matter.
If you need help drafting a joint will, you can use LegalMatch to find a will lawyer who can assist you. After submitting your case details, you will receive responses from attorneys interested in taking your case. You can review their profiles and credentials, read client reviews, and compare their rates before deciding which attorney to hire.
LegalMatch can also help if you dispute a joint will or trust. By submitting your case details, you can be matched with attorneys who can represent you in court and help you resolve the dispute in the most favorable way possible.
Use LegalMatch as a helpful resource for finding the right attorney for your legal needs, including drafting a joint will or handling a dispute over a joint will or trust.
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