A will is an estate planning document that allows a person, also known as a “testator,” to designate how their property will be distributed upon death. The property that may be disposed of in a will could include real or personal property.
Generally, in most states, in order for a will to be valid, the will must have each of the following:
- Be in writing
- Be signed by the testator
- Be witnessed by at least two or more competent witnesses who are not beneficiaries of any property covered by the will
- The testator must have “testamentary capacity.” Testamentary capacity is typically met if the testator is above the age of 18, in the military, is legally married, and knows:
- That they are creating a will
- The effect of the will is to distribute their property upon their death
- They understand the property in which they are distributing
- They understand who is receiving the property
Married couples can use several different types of wills to coordinate and execute their final wishes for their estate. There are joint, mutual, and mirror wills, the most commonly used form. Although the terms might sound similar, each type of will has different components that can significantly affect how property is distributed.
What are Mirror Wills?
Mirror wills (reciprocal wills) work in much the same way that the name suggests. A mirror will is a specific will used by married couples or life partners to transfer all of their property to their surviving spouse or partner upon their death. As the name indicates, mirror wills between spouses are essentially two separate wills that are mirror images of one another.
Although they give the bulk of the estate to the surviving spouse, mirror wills allow each spouse to still distribute specific personal property to other beneficiaries besides the other spouse. After specific transfers to beneficiaries, the surviving spouse will then receive the entirety of whatever is left of the decedent’s (spouse who passed away) estate.
If both pass at the same time, each will contain language indicating who will be assumed to have survived the other and language directing their estates to be distributed amongst their children or other chosen heirs.
Although each will contain almost identical language, each document is its own separate legal contract, each signed and executed by the testator. The signers can revoke the wills at any time.
Who Usually Uses a Mirror Will?
Reciprocal wills are most commonly used by spouses who have simple estates and agree that they want their property to go to each other first and then to the same persons when both spouses are deceased. That person is often a child of both spouses.
However, people do not have to be married to use a reciprocal will. If you, your partner, or any other person shares the same intent of disposing of your property upon death, then a reciprocal will can accomplish that goal.
How are Mirror Wills Different from Mutual Wills and Joint Wills?
Mirror Will v. Mutual Wills
While very similar, there are key differences between mirror and mutual wills (also sometimes called married wills). Once mutual wills are created, there is some debate about whether they can be changed, amended, or revoked (i.e., taken back or canceled). It is very difficult to change a will if the person has already died since the deceased party cannot make decisions about the will.
Mutual wills are primarily used to ensure that property passes to the deceased’s children rather than to a new spouse if a living spouse remarries after the death of the other. The will may state that in the event of one spouse’s death, the surviving spouse has limitations on distributing personal items or other property.
For instance, when the first spouse dies and the bulk of the estate is transferred to the surviving spouse, the will may state that the surviving spouse may not transfer a given asset to a particular person (e.g., a child who has disappointed the parent, a future spouse or a future spouse’s children).
On the other hand, each will may contain language that specifies that a piece of real property or something else (like a family heirloom) will go to a particular family member upon the death of the testator. Each will can designate a different person as the recipient of the asset, and the property will transfer to whomever the surviving spouse selected.
Mirror Wills v. Joint Wills
While mirror and mutual wills are two completely separate legal documents, a joint will is actually a single legal estate planning document signed by more than one party, usually a married couple. In the past, joint wills were a tool of convenience. The couple would agree on how to distribute jointly owned property but also allowed them to outline how they wished their separate property to be distributed. Each party would then sign the same document to make it effective.
A joint will is a good option for married couples with the same assets and beneficiaries, whose estate is relatively simple. In addition to simplifying the process, a joint will provides checks and balances. The will cannot be changed or revoked without both parties’ permission. Therefore, the estate is protected from rash decisions if a marital dispute arises.
One potential disadvantage is that a joint becomes irrevocable when one partner dies. As a result, the surviving partner cannot change the will or how the estate will be distributed.
Some states do not recognize joint wills, so check with an attorney to see if this is the case in your jurisdiction.
What are Some Advantages and Complications with Mirror Wills?
Mirror wills are a great way to provide a simple and cost-effective way of estate planning when a couple has similar wishes, but they also provide ways for individualization. Each spouse can nominate a separate backup executor or add a clause to give personal items to other family members if they pass first.
Mirror wills are meant to reflect a couple’s similar estate planning wishes. However, because they are completely separate legal documents, either can be revoked before death at any point. Because of this, complications can sometimes arise if the surviving spouse gets remarried, or children remarry, get a divorce, or encounter financial difficulties. This can sometimes mean that some property or assets pass outside the family, outside the original intent.
Do I Need an Attorney to Write a Will?
Estate planning law often changes. In addition, the law will vary depending on the state you reside in. Thus, if you plan to distribute your property upon your death, consulting with a well-qualified and knowledgeable local will attorney may be best. An experienced local estate planning attorney will explain to you how your local laws affect your choices and can draft a will per those laws.
Like with all legal matters, sometimes what you don’t know can hurt you or your family, so seek out the services of an experienced will attorney before deciding on a specific type of will, for future planning and protection and to ensure that your wishes are carried out to the full extent possible under the law.