What Is A Joint Will?

Understanding Joint Wills

A joint will is essentially a single will that two people, usually spouses, create together, agreeing on how their assets should be distributed upon their deaths. This approach to estate planning can simplify decision-making and provide clarity and security for the future. 

A Contractual Agreement: While the format is a single document, a joint will often functions as a binding agreement between spouses. This means neither spouse can change the will without the other's consent while both are alive.

Provisions Upon First Death: Upon the death of the first spouse, the following typically occurs:

• Survivor Inherits: The surviving spouse inherits all or most assets as outlined in the joint will.
• Will Becomes Irrevocable: The joint will becomes a legally binding and unchangeable document. The surviving spouse usually cannot alter its terms, even if their circumstances or wishes change.

Provisions Upon Second Death: When the surviving spouse dies:

• Asset Distribution: The assets are distributed according to the terms of the joint will, usually to designated beneficiaries such as children or chosen charities.
• Probate: The estate may still go through probate, particularly if challenged or the will's terms are unclear.

The decision to use a joint will should be made after carefully considering its limitations and potential impact on the surviving partner's flexibility to adapt to future changes.

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

Joint wills consolidate the estate planning process into a single document for both parties. This simplicity can be a significant advantage for couples with closely aligned wishes regarding the distribution of their assets, as it eliminates the need to create and manage separate wills.

Assurance of Mutual Decisions

One of the primary benefits of a joint will is the assurance that the wishes of both partners are respected after one passes away. Since both parties agree on the terms of the will together, there is a mutual understanding and agreement on how assets should be distributed.

Minimization of Disputes

Joint wills can help minimize disputes among beneficiaries after one partner passes away. Since the will reflects the joint decisions of both parties, it is often seen as a stronger testament to their mutual wishes, potentially reducing family conflicts and challenges to the will.

Cost Efficiency

Creating a joint will can be more cost-effective than drafting separate wills for each partner. This efficiency applies to the initial creation of the will and potentially reduces legal costs associated with estate administration, as there is just one document to probate.

Strengthened Commitment to Agreements

Because a joint will is a mutual agreement, it strengthens the commitment of each partner to the agreed-upon terms. This can be particularly important in ensuring that specific family heirlooms, property, or charitable donations are handled as intended by both parties.

Protection for the Surviving Spouse

Joint wills often include provisions that protect the surviving spouse, ensuring they have the necessary resources and assets to live comfortably before the estate is distributed according to the further terms of the will.

Facilitation of the Probate Process

By having a clear, jointly agreed-upon document, the probate process may be streamlined, as the will clearly outlines the desires of both parties. This can make the execution of the will smoother and faster, provided there are no legal challenges.

Example:

Consider the case of a married couple who have spent their lives together building a significant estate. By creating a joint will, they can ensure that their assets are used to support the surviving spouse if one of them passes away.

They can specify that upon the surviving spouse's passing, the remaining estate is distributed to their children, charities, or other heirs according to their mutual wishes. This arrangement simplifies the estate planning process and provides a clear roadmap for the future, minimizing the potential for disputes among heirs.

Cons: What Are the Drawbacks of Joint Will?

While joint wills offer several benefits, particularly for couples with closely aligned estate planning goals, they also have drawbacks that should be carefully considered. Here are some key disadvantages associated with joint wills:

Lack of Flexibility

One of the main disadvantages of a joint will is its lack of flexibility, especially after the death of one partner. In many cases, a joint will becomes irrevocable when one party dies, which means the surviving partner cannot alter the will to reflect changes in circumstances, relationships, or preferences.

• Challenges with Second Marriages: If the surviving spouse remarries, they cannot change the will to include their new spouse or create provisions for any children from the new marriage.

Potential for Future Conflicts

While a joint will is designed to minimize disputes by clarifying the wishes of both partners, it can sometimes lead to conflicts among beneficiaries, especially if circumstances change significantly after the first partner's death.

• Limitations for Blended Families: Joint wills can be problematic for couples with children from previous relationships. The surviving spouse may be unable to provide equitably for all beneficiaries as they wish.

Complexity in Estate Administration

Joint wills can sometimes complicate the estate administration process. This complexity arises because the will must address the distribution of assets upon the deaths of both individuals, which can lead to legal challenges, especially if the will's terms become outdated or if there are ambiguities in how assets should be distributed.

Legal Limitations

Not all jurisdictions recognize joint wills; even where they are recognized, there may be specific legal limitations on how they can be structured and enforced. This can create uncertainty and may require additional legal guidance to navigate effectively.

Delayed Asset Distribution

Since a joint will typically outlines asset distribution after both parties have passed away, it can delay the distribution of certain assets to other beneficiaries.

Reduced Control for the Surviving Partner

The irrevocability of a joint will after one partner's death means the surviving partner has reduced control over the estate. This can be problematic if the surviving partner wishes to remarry, adjust financial plans, or otherwise respond to life's changes in a way that deviates from the original terms of the joint will.

Example:

Consider a couple who created a joint will to leave their estate from previous marriages to their children. If one spouse passes away and the surviving spouse's relationship with their stepchildren deteriorates, the surviving spouse might wish to alter the will's terms.

The irrevocable nature of the joint will could prevent any adjustments, leading to potential disputes and complications in fulfilling the estate's distribution as initially planned.

While joint wills offer significant benefits, it's important to note that they may not be the best option for every couple. Legal advice is critical to ensure that a joint will align with your estate planning goals and comply with local laws.

Alternatives to a Joint Will

Exploring alternatives is crucial for ensuring your estate plan is flexible and tailored to your unique situation. Here are several options to consider:

When a Joint Will Might Be the Right Option

Here are some scenarios where a joint will may be particularly suitable:

• Shared Estate with Unified Wishes: Couples with a closely intertwined estate and identical or very similar wishes regarding asset distribution may find a joint will to be an effective solution.
• Desire for Simplified Estate Planning: A joint will can offer a straightforward approach for couples looking to simplify their estate planning process.
• Strong Agreement on Future Asset Distribution: Couples who strongly agree about how their assets should be distributed after both deaths.
• Concern for Surviving Spouse's Financial Security: A joint will can include provisions that ensure the surviving spouse maintains control over the couple's assets during their lifetime.
• Minimal Concern for Changes in Circumstances: Couples who believe their circumstances are unlikely to change significantly or are committed to the decisions made at the time of drafting.
• Legal Advice Supports It: If, after consulting with an estate planning attorney, a joint will is recommended based on the couple's specific legal, financial, and personal situation.

Factors to Consider Before Opting for a Joint Will

Here are factors to consider before deciding if a joint will is the right option for you and your partner:

• Flexibility for Future Changes: Consider whether you and your partner might want the flexibility to change your will in the future. A joint will often becomes irrevocable when one partner dies, limiting the surviving partner's ability to alter the will in response to changed circumstances or relationships.
• Estate Planning Goals: Evaluate your estate planning goals together. Are your goals aligned closely enough to be effectively addressed with a joint will? Joint wills work best for couples with very similar or identical wishes regarding the distribution of their entire estate assets.
• Asset Distribution: Think about how you wish to distribute your assets. Joint wills dictate that assets are typically passed directly to the surviving spouse and then distributed according to the couple's mutual agreement after both have passed. 
• Complexity of Estate: Assess the complexity of your estate. If your estate involves complicated arrangements, such as business ownership, properties in multiple states, or international assets, a joint will's simplicity might not adequately address these complexities.
• Legal and Tax Implications: Understand a joint will's legal and tax implications. Laws regarding joint wills vary by jurisdiction, and there could be significant tax considerations, especially for large estates or those subject to estate taxes.
• Future Marriages: Consider the possibility of future marriages. If the surviving partner remarries, a joint will cannot be changed, which might not reflect the new family dynamics or the desires of the surviving partner to provide for the new spouse.
• Protection of Beneficiaries: Determine how best to protect your beneficiaries. A joint will ensures that your assets are distributed according to the mutual wishes of you and your partner.

Steps to Creating a Joint Will

Here are the typical steps to creating a joint will:

1. Discuss and Agree on Key Decisions

The first step involves both partners discussing their wishes for asset distribution, guardianship of minor children (if applicable), and any specific bequests or instructions they want to include in the will. This step is crucial for ensuring that the joint will accurately reflects the mutual intentions of both parties.

2. Inventory Assets

Make a comprehensive list of assets, including real estate, bank accounts, investments, personal property, and any other items of value. This inventory will form the basis for deciding how assets may be distributed and can help identify potential complications in executing those wishes.

3. Decide on Beneficiaries

Clearly identify who will inherit the assets. Beneficiaries can include children, relatives, friends, or charitable organizations. Discuss how assets will be divided among beneficiaries and any conditions or stipulations you want to apply to these bequests.

4. Choose an Executor

The executor is accountable for carrying out the terms of the will. Choose someone you trust to manage your estate efficiently and according to your wishes. Selecting an alternate executor is also wise if your first choice cannot or is unwilling to serve.

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.

6. Draft the Will

Your attorney will draft the will based on your instructions, ensuring that it includes all necessary elements such as the declaration, appointment of an executor, asset distribution instructions, guardianship designations (if applicable), and any other specific wishes.

7. Review and 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.

8. Sign the Will in the Presence of Witnesses

For a will to be legally valid, it must be signed by both partners in the presence of at least two witnesses. The witnesses must be adults who are not beneficiaries of the will and can attest to both signatories' soundness of mind.

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 whether a joint will is suitable for you involves careful consideration of your estate planning needs, goals, and the potential impact on your estate's future management and distribution.

For couples considering a joint will, weighing these potential drawbacks against the benefits is crucial. Consulting with an estate planning attorney can provide valuable insights into whether a joint will is the best choice for your situation or if alternative estate planning tools might better serve your needs.

Creating a will is a decisive step towards a secure future for your loved ones. Don't leave their well-being to chance—take control by documenting your wishes. Start my free will now!³

Sources

1. US Legal - Joint Will Law and Legal Definition. https://definitions.uslegal.com/j/joint-will/
2. The Pros and Cons of a Joint Will for Married Couples. https://www.california-elder-law.com/blog/the-pros-and-cons-of-a-joint-will-for-married-couples/
3. Free Will from Fabric by Gerber Life, a member of the Western & Southern Financial Group Family of Companies. https://www.westernsouthern.com/about/family-of-companies.