The term “mutual wills” describes two or more will documents that are mutually binding upon one another. With mutual wills, the parties may agree that following the death of one of the parties, the surviving party is limited in the way that they can distribute their real or personal property. Each party agrees to the distribution of their property with the other, and such an agreement becomes a part of each party’s independent will.
When a husband and wife agree that a certain item of property will only pass to their child, this is an example of a mutual will. Accordingly, if either the husband or wife dies, the property will be distributed according to their mutual wills.
Spouses commonly make mutual wills to ensure that their property goes to their children, regardless of a divorce or remarriage. Thus, mutual wills are sometimes referred to as “married wills” or “marriage wills.”
How Do Mutual Wills Work?
The purpose of a will is to specify one’s wishes regarding the distribution of assets, property, and obligations, as well as the care of any minor children or other dependents. Your wishes may not be followed if you die without a will, instead passing through probate court. After your death, your heirs and unnamed beneficiaries may have to spend additional time, money, and emotional energy settling the estate’s affairs.
Mutual wills 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. Due to state differences in contract law, mutual wills should be drafted by a legal professional. A mutual will should not be confused with a joint will, even though the terms sound similar.
What Are the Steps to Creating a Mutual Will?
Here are the steps for creating a mutual will:
- Decide which property to include: Identify significant assets, then decide whether they should or must be left by other means. If you are married, each spouse can make a separate will or a joint will. It is only possible for an individual to leave the share of assets they own jointly with their spouse.
- Decide who will inherit the property: It would be best if you chose alternate or contingent beneficiaries in case the first choices don’t survive the testator.
- Appoint an executor to manage the estate: The terms of a will must be carried out by an executor. Verify in advance that the executor is willing to serve.
- If you have children, choose a guardian: Decide who will raise minor children if the other parent is unable to do so.
- Select someone to manage children’s property: Choose an adult to manage property left to children or young adults. Make that person the property guardian, custodian, or trustee of the child’s inheritance.
- Draft the will: The process of making a will can be done by engaging an attorney or using one of many free and public online services.
- Make sure there are witnesses present when you sign the will: A completed will must be signed in the presence of two witnesses. A self-proving affidavit must also be notarized if used to simplify probate court proceedings.
- Keep the will in a safe place: Tell the executor where the will is located and how to access it.
Are Mutual or Married Wills Different from Joint Wills?
Although mutual wills can sometimes accomplish similar goals, they differ greatly from joint wills. Joint wills are created when two parties sign the same will document rather than creating separate ones. In this way, the parties’ goals are consolidated into one document that is easily accessible.
Joint wills may be beneficial, especially if the parties are only dealing with a few major property distributions. Conversely, suppose both parties own many different assets and properties. In that case, it may be more practical to use mutual wills so that each party can address their own property while limiting the other’s inheritance.
Last but not least, the parties usually distribute their property identically or nearly identically in a joint will. On the other hand, a mutual will may limit the parties to just one or a few items of property.
Are Mutual Wills Revocable?
Once mutual wills are created, there is some debate about whether they can be changed, amended, or revoked (i.e., taken back or canceled).
There are several complex issues to consider. It may be difficult to change a will if one party has already died since the deceased party cannot participate in the decision.
In some jurisdictions, mutual wills are revocable so long as the changes or cancellations comply with each party’s wishes. A court may also impose a constructive trust on the property and appoint a trustee to manage it in some cases.
Therefore, when creating mutual wills, the parties may also want to include provisions about revoking the wills. To provide instructions for future changes to the wills, especially if one of the parties has already passed away, these should be clearly written.
What Are the Pros and Cons of Joint vs. Individual Wills?
A joint will is a good option for married couples with the same assets and beneficiaries. Your assets should be distributed according to your mutual agreement, especially if your estate is relatively simple.
In addition to simplifying the process, a joint will provides checks and balances. A will cannot be changed or revoked without your partner’s permission. Therefore, the estate is protected from rash decisions if a marital dispute arises. Additionally, it protects against mistrust and foul play in a marriage.
It is important for anyone considering a joint will to consider its potential disadvantages.
When one partner passes away, a joint will becomes irrevocable. As a result, the surviving partner cannot change the will or how the estate will be distributed. If their circumstances change, this could pose a major problem.
It is possible, for example, for the surviving partner to get married again and have more children. There could be a falling out between them and their child, or they may have to sell their house in an emergency. We live in an unpredictable world, and our inflexibility often becomes a hindrance rather than a safeguard.
Do Husbands and Wives Need Separate Wills?
The majority of the time, a husband and wife need separate wills. As a matter of fact, it is highly recommended.
Some couples may benefit from joint wills, but not all. In the first place, joint wills aren’t legal in all states. Further, the probate judge might separate or invalidate a joint will altogether.
If one spouse passes away, the will becomes irrevocable, and there is no flexibility for the surviving spouse to make changes. Ideally, each partner should have their own separate wills in place for maximum protection.
Are Lawyers Needed for Mutual Wills or Married Wills?
Parties that wish to create agreements regarding the distribution of property can benefit from mutual wills. In the same way as a contract, they are subject to negotiation and discussion. For this reason, it may be necessary to hire an inheritance lawyer for assistance during the negotiating, drafting, and reviewing phases of the will documents. Additionally, a lawyer near you can represent you in court if a lawsuit is necessary.