What Is a Joint Will & How Does It Work?

Understanding Joint Wills

A joint will is essentially a single will document created by two people, usually spouses. It outlines how their assets should be distributed after both have passed away.¹ This approach can simplify decision-making and clearly state shared intentions for the future. 

A Contractual Agreement

Although it is one document, a joint will often acts as a binding agreement between spouses. While both individuals are alive:

• Neither person can make changes without the other’s consent.
• The terms reflect a mutual decision about how assets will be handled.

Provisions Upon First Death

When the first spouse dies, the joint will typically works as follows:

• Surviving spouse inherits: The remaining spouse receives most or all of the assets, based on the terms of the will.
• Will becomes irrevocable: The document usually cannot be changed after the first death, even if circumstances shift.

Provisions Upon Second Death

After the surviving spouse passes away:

• Asset distribution: Assets are distributed to the named beneficiaries, such as children or charities.
• Probate process: The estate may still go through probate, especially if there are disputes or unclear instructions.

Choosing a joint will requires careful thought. It can limit the surviving spouse’s ability to adjust plans if life circumstances change later on.

Pros:What Are the Benefits of a Joint Will?

The benefits of a joint will can be particularly attractive to couples looking to streamline their estate planning process and ensure their mutual decisions about asset distribution are honored after they pass. Here are some key advantages that a joint will offers:

Simplicity in Planning

A joint will brings both partners’ plans into a single document. This can make the process easier to manage, especially for couples who share similar goals for how their assets should be distributed.

Assurance of Mutual Decisions

Because both partners agree to the terms together, a joint will reflects a shared understanding. This can help confirm that each person’s wishes are carried out as intended after one partner passes away.

Minimization of Disputes

A joint will may reduce the chance of disagreements among beneficiaries. Since it represents decisions made together, it can serve as clear evidence of the couple’s intentions and help limit challenges from family members.

Cost Efficiency

Using one document instead of two can lower upfront legal costs. It may also simplify estate administration, since there is only one will to go through probate.

Strengthened Commitment to Agreements

A joint will reflects a shared commitment between partners. This can be helpful when planning for specific outcomes, such as passing down family heirlooms, property, or charitable gifts according to agreed terms.

Protection for the Surviving Spouse

Many joint wills include provisions for the surviving spouse. These terms often allow the surviving partner to continue using certain assets before the remaining estate is distributed.

Facilitation of the Probate Process

A clearly written joint will can make probate more efficient. With both partners’ wishes outlined in one document, the process may move more smoothly, as long as there are no legal challenges.

Example

Consider a married couple who have built an estate over many years. With a joint will, they can outline how their assets will support the surviving spouse after one partner passes away.

They can also state that once the surviving spouse passes, the remaining assets will go to their children, charities, or other beneficiaries. This approach keeps the estate planning process clear and may help reduce confusion or disputes among heirs.

Cons: What Are the Drawbacks of a Joint Will?

While joint wills can work well for couples with shared goals, they also come with limitations that are important to understand. Here are some key disadvantages associated with joint wills.

Lack of Flexibility

A joint will often becomes difficult or impossible to change after one partner dies. In many cases, it becomes irrevocable, meaning the surviving partner cannot update it to reflect new circumstances, relationships, or preferences.

If the surviving spouse remarries, they may not be able to add their new spouse or provide for children from that relationship.

Potential for Future Conflicts

Joint wills aim to reduce disputes by clearly outlining shared wishes. However, they can still lead to disagreements, especially if situations change after the first death.

Couples with children from prior relationships may face challenges. The surviving spouse may not be able to adjust distributions to reflect changing family dynamics.

Complexity in Estate Administration

Managing a joint will can be more complicated than handling separate wills. Because it covers the distribution of assets after both individuals have passed away, issues can arise if:

• The terms become outdated
• The language is unclear
• Circumstances change over time

These factors can lead to delays or legal challenges during the administration process.

Legal Limitations

Joint wills are not recognized in every state. Even where they are allowed, rules around how they must be written and enforced can vary.

This can create uncertainty and may require additional legal guidance to help follow local laws.

Delayed Asset Distribution

A joint will typically outlines how assets are distributed only after both partners have passed away. This structure can delay when certain beneficiaries receive their inheritance.

Reduced Control for the Surviving Partner

Once one partner dies, the surviving spouse may have limited ability to make changes. This can be restrictive if they want to:

• Remarry
• Adjust how assets are distributed
• Respond to new financial or family situations

Example

Consider a couple who create a joint will to leave their estate to children from previous marriages. After one spouse passes away, the surviving spouse’s relationship with their stepchildren becomes strained.

Even if the surviving spouse wants to make changes, the joint will may prevent any updates. This can lead to disputes and make it harder to carry out the original plan.

Joint wills can be useful in certain situations, but they are not the right fit for every couple. Legal guidance can help determine whether this type of will aligns with your goals and follows applicable laws.

Alternatives to a Joint Will

Exploring other options can help you choose an estate plan that fits your situation and allows for flexibility over time. Here are several alternatives to consider:

• Mirror wills: These are separate wills created by each spouse or partner. They are nearly identical in how assets are distributed, but each person keeps their own individual will.
• Living trusts: A living trust is a legal document that places your assets into a trust during your lifetime. After your death, those assets are transferred to your chosen beneficiaries.
• Testamentary trusts: These trusts are created within a will and take effect after death. They can help manage and protect assets for beneficiaries, such as minor children, and can be tailored to specific needs.
• Transfer on death accounts and deeds: These allow you to name beneficiaries who will receive certain assets, such as financial accounts or property, after your death without going through probate.
• Joint tenancy with right of survivorship: This type of ownership allows property to pass directly to the surviving co-owner when one owner dies, avoiding probate. 
• Life insurance policies: Life insurance can provide funds to a surviving spouse or other beneficiaries after the policyholder’s death.

When a Joint Will Might Be the Right Option

In some cases, a joint will may still be a practical choice. It may work well in the following situations:

• Shared estate with unified wishes: Couples with closely connected assets and similar goals for how those assets should be distributed.
• Desire for a simpler approach: A joint will may appeal to couples who want a more straightforward estate planning process.
• Strong agreement on asset distribution: Couples who fully agree on how their assets should be handled after both have passed away.
• Focus on the surviving spouse: A joint will can include terms that allow the surviving spouse to maintain control of shared assets.
• Few expected changes: Couples who do not expect major life changes or are comfortable committing to their decisions long term.
• Legal guidance supports it: After speaking with an estate planning attorney, a joint will may be recommended based on the couple’s legal and personal circumstances.

Factors to Consider Before Opting for a Joint Will

Before deciding if a joint will is right for you and your partner, take time to review how it may affect your options now and in the future. Here are factors to consider:

• Flexibility for future changes: Think about whether you may want to update your will later. A joint will often becomes irrevocable after one partner passes away. This can limit the surviving partner’s ability to make changes if circumstances or relationships shift.
• Estate planning goals: Review your goals together. Joint wills tend to work better for couples who share very similar wishes about how their assets should be distributed.
• Asset distribution: Consider how you want your assets handled. With a joint will, assets usually pass to the surviving spouse first. After both partners have passed, the remaining assets are distributed based on the original agreement.
• Complexity of estate: Look at how complex your estate is. If you have business interests, property in multiple states, or international assets, a joint will may not fully address those details.
• Legal and tax implications: Understand the legal and tax impact. Rules around joint wills can vary by state, and tax considerations may apply, especially for larger estates.
• Future marriages: Think about the possibility of remarriage. If the surviving partner remarries, a joint will typically cannot be changed, even if family dynamics or priorities evolve.
• Protection of beneficiaries: A joint will can help carry out shared wishes by setting clear terms for how assets should be distributed after both partners pass away.

It may help to speak with an estate planning attorney before making a final decision.

Steps to Creating a Joint Will

Here are the typical steps to creating a joint will.

Step 1: Discuss and Agree on Key Decisions

Start by talking through your wishes as a couple. This includes how you want assets distributed, who would care for minor children if needed, and any specific bequests or instructions you want included. Clear communication at this stage helps the will reflect both partners’ shared intentions.

Step 2: Inventory Assets

Create a detailed list of everything you own. This may include:

• Real estate
• Bank accounts
• Investments
• Personal property
• Other valuable items

Having a full inventory makes it easier to decide how assets will be distributed and can highlight any potential complications.

Step 3: Decide on Beneficiaries

Clearly identify who will inherit the assets. Beneficiaries can include:

• Children
• Relatives
• Friends
• Charitable organizations

Discuss how assets will be divided among beneficiaries and any conditions or stipulations you want to apply to these bequests.

Step 4: Choose an Executor

The executor is responsible for carrying out the terms of the will. Choose someone you trust to handle this role responsibly. It can also help to name an alternate executor in case your first choice is unable or unwilling to serve.

Step 5: Consult with an Estate Planning Attorney

While it's possible to draft a will independently, consulting with a lawyer specializing in estate planning is highly recommended. An attorney can ensure that your joint will complies with state laws, addresses all necessary legal considerations, and accurately reflects your wishes.

Step 6: Draft the Will

Based on your input, the attorney will prepare the will. It typically includes:

• A formal declaration
• Executor designation
• Instructions for asset distribution
• Guardianship details, if applicable
• Any additional instructions

Step 7: Review & Update Your Will as Necessary

Once drafted, both partners should thoroughly review the will to ensure it accurately reflects their wishes. It's essential to update your will as circumstances change, such as the birth of children, the acquisition of significant assets, or changes in relationships.

Step 8: Sign the Will in the Presence of Witnesses

To be legally valid, both partners must sign the will in front of at least two adult witnesses. These witnesses should not be beneficiaries and must be able to confirm that both individuals are of sound mind.

Step 9: Store the Will Safely

Store the will in a safe, accessible place and inform the executor and a trusted family member or friend of its location. Some choose to keep their will in a safe deposit box, while others may use a fireproof safe at home or leave a copy with their attorney.

Conclusion

Deciding if a joint will fits your situation takes careful thought. Consider your goals, your estate, and how this type of will may affect future decisions about asset management and distribution.

It is also important to weigh the potential drawbacks alongside the benefits. Speaking with an estate planning attorney can help you understand whether a joint will makes sense or if another approach may be more suitable.

Creating a will is an important step in documenting your wishes and helping guide your loved ones in the future.

Sources

1. US Legal - Joint Will Law and Legal Definition. https://definitions.uslegal.com/j/joint-will/.