What Is A Mutual Will?

Understanding Mutual Wills

A mutual will operates through a legally binding agreement between two or more parties, often a married couple or life partners, outlining how their assets are to be distributed after their deaths.¹ Here's a breakdown of how a mutual will works:

Creation and Agreement

• Joint Decision-Making: The parties involved decide together on the distribution of their assets upon their deaths. This includes specifying beneficiaries, such as children, other family members, or charities.
• Legal Documentation: This enforceable agreement is then formalized into individual will documents, prepared to ensure it meets all legal requirements and accurately reflects the parties' wishes.

Binding Agreement

• Irrevocability Clause: A key feature of a mutual will is the inclusion of an irrevocability clause. This clause means that once one party passes away, the surviving party is legally bound by the terms of the mutual will and cannot change the agreed-upon distribution plan for the assets.
• Consent Requirement: While both parties are alive, any changes to the mutual will require joint consent, ensuring that both parties agree to any amendments to their estate planning documents.

First Party’s Death

• Activation of Terms: Upon the death of one party, the terms of the mutual will come into full effect for the survivor. 
• Legal Protection: The mutual will serves to protect the intentions of the deceased, ensuring that their wishes for asset distribution are respected and carried out by the surviving party.

Surviving Party's Role

• Distribution According to Agreement: The surviving party is obligated to manage and eventually distribute the assets according to the mutual agreement. This includes any specific instructions after the surviving party's death.
• Limited Ability to Alter Estate Plan: The survivor cannot alter the agreed-upon plan for the assets that were jointly owned or designated in the mutual will.

Upon the Death of the Surviving Party

• Final Distribution: After the death of the surviving party, the assets are distributed to the beneficiaries as outlined in the mutual will, completing the estate distribution process as initially agreed upon by the creators.

Practical Example:

Consider a couple, Mia and Sam, who create a mutual will. They agree that upon the death of one, the entirety of their estate will go to the survivor. When the surviving spouse dies, the estate is to be divided equally among their children.

Upon Mia's death, Sam is legally bound to follow the terms set in the mutual will and cannot decide to leave the estate to someone else. Sam's obligations under the mutual will ensure that Mia's wishes are respected and that their children are the ultimate beneficiaries of the estate.

Pros: What Are the Benefits of a Mutual Will?

Mutual wills offer several key benefits, particularly for couples with a strong desire to ensure their mutual estate planning wishes are honored after they're gone. Here's a look at the primary advantages:

Ensures Shared Wishes Are Respected

A mutual will guarantees that both partners' intentions are upheld regardless of the order in which they pass away. This can be particularly beneficial for:

• Couples with children from previous relationships: It ensures the surviving partner cannot alter the distribution of assets to benefit their own children over the deceased partner's.
• Blended families: It provides clarity and reduces potential conflict by clearly outlining how assets will be distributed within the family structure.

Simplifies Probate

By having their wishes documented in two legally binding documents, a mutual will can streamline the probate process for the surviving partner. This can potentially save time and money associated with navigating probate court.

Protects Beneficiaries

The binding agreement ensures the surviving partner cannot alter the distribution plan as originally agreed upon, safeguarding intended beneficiaries from potential changes in the future.

Promotes Communication and Planning

The process of creating a mutual will often involves open communication and thoughtful planning between partners, fostering understanding and alignment on their estate planning goals.

Cons: What Are the Drawbacks of Mutual Will?

While mutual wills can provide a sense of security and ensure that the wishes of both parties are respected after their passing, they also come with several potential drawbacks that should be carefully considered:

Lack of Flexibility

The binding agreement that comes with a mutual will restricts the surviving partner's ability to change their individual will after the first partner's death. This can be problematic if:

• Personal circumstances change: Unexpected events like the birth of children or changes in financial situations might necessitate adjustments to the original distribution plan, which becomes difficult with a mutual will.
• Relationship breakdown: In the unfortunate event of a marital separation or divorce, the binding agreement in a mutual will remains in effect, potentially creating legal complexities and hindering individual financial freedom.

Potential Legal Challenges

The enforceability of mutual wills can vary across jurisdictions. In some cases, the surviving spouse might contest the terms, and legal battles could arise, potentially causing delays and additional expenses.

Complexity and Cost

Mutual wills involve a complex legal agreement that requires careful drafting and a clear understanding by all parties involved. This complexity often results in higher legal costs, both at the time of creation and in the administration of the estate.

Limited Applicability

Mutual wills might not be suitable for all couples. They are generally less appropriate for:

• Couples with significantly different assets: If one partner has considerably more assets than the other, a different estate planning strategy might be needed to ensure their individual needs are met.
• Couples expecting significant future inheritance: If either partner anticipates inheriting significant assets in the future, a traditional will might offer more flexibility to adjust their estate plan accordingly.

Understanding both the benefits and drawbacks of mutual wills allows couples to make informed decisions regarding their estate planning options. Legal advice is critical to ensure that a joint will align with your estate planning goals and comply with local laws.

Alternatives to a Mutual Will

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

1. Mirror Wills: Mirror wills, also called reciprocal wills, are distinct individual wills that spouses or partners establish, containing nearly identical asset distribution provisions yet tailored to each person.²
2. Living Trusts: A living trust is a legal document that puts your assets into a trust for you to use while you're alive and then allows for those assets to be transferred to chosen beneficiaries after you pass away.
3. Transfer on Death Accounts and Deeds: Transfer on death (TOD) accounts and deeds enable individuals to designate beneficiaries to receive assets upon the death of the account or property holder, thereby avoiding the probate process.
4. Joint Tenancy with Right of Survivorship: This type of joint ownership allows the property to transfer directly to the surviving co-owner when the other owner passes away, avoiding the necessity of going through probate.

When a Mutual Will Might Be the Right Option

Mutual wills can be appropriate for certain couples, generally under the following circumstances:

• Couples with children from previous relationships: Mutual wills help ensure that assets are distributed fairly and according to the agreed-upon plan, protecting children from both sides of a blended family.
• Strong shared goals and commitment: Mutual wills rely heavily on trust and shared long-term intentions between partners. They are ideally suited for couples with aligned expectations about the future.
• Desire for certainty in inheritance: If couples want assurance that specific beneficiaries (i.e., children, charities) will receive their intended inheritance, a mutual will provides a way to secure these wishes.
• Limited changes anticipated: Mutual wills work best when a couple feels their situation and wishes are unlikely to change significantly in the future, allowing for a higher degree of certainty in their planning.
• Priority on protecting the surviving spouse: For some couples, the primary concern is safeguarding the surviving spouse's well-being, and a mutual will can help facilitate this goal.

Factors to Consider Before Opting for a Mutual Will

Here's a breakdown of the most important factors to carefully evaluate before choosing a mutual will:

Potential for Future Changes

• Remarriage: If either of you anticipates the possibility of remarrying after your partner's death, a mutual will could significantly restrict your ability to provide for your new spouse.
• New Children or Beneficiaries: The birth of new children or changes in your relationship with potential beneficiaries might make the initial agreement in the mutual will unsuitable.
• Asset Fluctuations: Significant increases or decreases in your wealth after creating a mutual will could make the distribution plan unfair or impractical.

Need for Flexibility

• Young Couples: If you're relatively young, your life circumstances, financial situation, and even your wishes for asset distribution are likely to evolve over time. A mutual will's inflexibility could become problematic.
• Evolving Estate Planning Goals: As you get older, your views on legacy planning might shift, or you might need to implement tax-saving strategies. A mutual will might hinder those adjustments.

Trust in Your Partner

• Confidence in Shared Goals: Mutual wills rely heavily on the assumption that both partners will remain fully aligned on the estate plan, even after circumstances change. Any potential for future disagreement makes a mutual will less advisable.
• Concerns About Undue Influence: Mutual wills can sometimes be used to address worries that the surviving spouse might be pressured to alter their will after the first death. Consider how realistic this concern is for your situation.

Complexity of Your Estate

• Simple Estates vs. Complex Estates: If your estate is relatively straightforward, a mutual will might be sufficient. However, complex assets, sizable wealth, or the desire for nuanced control often call for more flexible tools like trusts.

Legal Considerations

• State/Country Laws: The enforceability, requirements, and potential ways to alter mutual wills vary significantly between jurisdictions. Professional legal guidance is absolutely essential.

Steps to Creating a Mutual Will

Creating a mutual will involves a series of deliberate steps designed to ensure that the wills accurately reflects the joint wishes of both parties and is legally enforceable. Here are the typical steps:

1. Evaluate Your Estate Planning Needs

Begin by assessing your estate planning needs, considering the size and complexity of your estate, your beneficiaries, and any specific wishes you have for the distribution of your assets. This step is crucial for understanding whether a mutual will is the best estate planning tool for your situation.

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. Discuss and Agree on Terms with Your Partner

Have an in-depth discussion with your partner to agree on the key terms of the wills. This includes decisions on how assets will be distributed, guardianship arrangements for any minor children, and any conditions or legacies you wish to include. Mutual understanding and agreement are fundamental, as the terms of mutual wills are binding after the first death.

4. Consult with an Estate Planning Attorney

Given the legal complexities and implications of mutual wills, consulting with an estate planning attorney is essential. An attorney can provide advice tailored to your specific circumstances, help you understand the legal requirements, and ensure that your separate wills comply with state laws.

5. Draft the Wills

Your attorney will draft the mutual wills based on the agreed-upon terms. These document details how assets are to be distributed, name executors, and include any other legal provisions necessary to ensure that your wishes are carried out.

6. Review and Revise as Necessary

Carefully review the draft wills with your partner and attorney. This is the time to make any adjustments or revisions to ensure that the documents accurately reflect your wishes and are clear and unambiguous.

7. Execute the Wills According to Legal Requirements

Once the mutual wills are finalized, they must be executed properly to be valid. This typically involves signing the will in the presence of witnesses. The specific requirements can vary by jurisdiction, including the number of witnesses required and any additional steps needed to make the will legally binding.

8. Store the Wills Safely

Store the executed wills in a safe, secure location. It's also wise to inform the executor of the wills or a trusted family member of their location, so they can be easily found when needed.

9. Review Periodically

While mutual wills are intended to be irrevocable after the first death, it's wise for both parties to review their entire estate plan periodically while both are alive. This allows you to reconsider your decisions in light of any changes in your circumstances, relationships, or the law. However, remember that changes to a mutual will require the agreement of both parties.

10. Consider a Memorandum of Understanding

In some cases, partners may choose to accompany their mutual will with a memorandum of understanding. This separate document can outline the reasons behind specific decisions in the will and can be helpful in preventing disputes among beneficiaries by providing context for your choices.

Conclusion

Mutual wills stand out as a testament to shared love and intentions, offering couples a secure way to ensure their estate planning wishes are honored to the letter. Whether you're drawn to the promise of unwavering respect for your joint decisions or the legal assurance that your legacy is protected, mutual wills offer a compelling solution. But every couple's situation is unique, and it's crucial to consider all your options. Ready to take the first step towards a secure future together?

Start by exploring our free will creation service from Fabric by Gerber Life. It's quick, easy, and the perfect way to begin securing your legacy as a couple. Start planning for tomorrow, today.³

Sources

1. Are mutual wills a good idea? https://www.stewartslaw.com/news/are-mutual-wills-a-good-idea/
2. The Difference Between Mirror Wills and Mutual Wills. https://www.e-stateplanner.com/post/the-difference-between-mirror-wills-and-mutual-wills
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.