Want to leave a lasting legacy together? A joint will might be your answer! It’s like a group project for your estate plan, where you and your partner/spouse decide how your shared assets will be distributed after you’re both gone. Think of it as the ultimate expression of your shared goals and values.
What is a joint will?
A joint will is literally exactly what it sounds like–it’s a mutual will you and your spouse make together to distribute your assets in a certain way. They are no different than regular wills except for a few things:
- (1) Two people sign it (it’s a contract), and
- (2) When one spouse dies, the will becomes irrevocable, meaning the surviving spouse can’t change any of the terms at that point.
It makes sense, right, you can’t agree to a will with your spouse, wait for them to die, and then change all of the terms.
Hypothetical example explaining joint wills
Sometimes, things are easier understood through examples. Here’s a hypothetical example of how a joint will works depending on your situation and state laws.
John and Mary Smith, a retired couple with children from previous marriages, created a joint will to ensure their assets were distributed fairly. Their will stipulated that the surviving spouse would inherit everything, and upon the second death, their house would be sold and divided equally among their three children. When John passed away, Mary inherited everything but lost the ability to change the will (this is her state law, which is true in many states). Upon her death, the will was executed, dividing the assets as planned. This provided clarity and security but limited Mary’s flexibility to adapt to changing circumstances once John died.
What is the difference between a joint will and a regular will?
A joint will is signed by two people, whereas a regular will is just signed by one person. A joint will also typically becomes irrevocable upon the death of one of the spouses, meaning the surviving spouse may not be able to change the terms in the will. On the other hand, a regular will allows you to amend the terms of the will indefinitely (until you die, that is).
What happens when one person in a joint will dies?
Let’s say Lisa and John are married and have a joint will. This will states that “all assets will become Lisa’s/John’s property upon either party’s death. Then, once the last person in the couple dies, all of the assets shall go to their children equally.” If John dies first, then Lisa gets all of the assets. However, let’s say Lisa gets remarried, and she wants to leave some stuff to her new husband when she dies. Many states say that she cannot do this because the will became irrevocable as soon as John died. She’s stuck with the terms she’s signed.
How to create a valid joint will
Joint wills can be a bit tricky because the rules vary from state to state. In many cases, there aren’t specific laws about them. Instead, courts have shaped how joint wills work through their decisions in different cases.
For example, let’s look at Illinois. Here’s how their courts typically decide if a will is a joint will:
- The court looks to the label the testators have assigned to the will. (Does it say “joint and mutual” will or something of the like?)
- The court looks at the will to see if the testators (the people who created the will) used terms such as “we” and “our.”
- The court looks for terms within the joint will that demonstrate a pooling of interests.
- The court checks if the will treats both spouses equally. Did they leave everything to the surviving spouse?
- The court looks to see if there is a clear plan for the couple’s assets to be divided fairly equally among their heirs.
(See King v. Travis, 524 N.E.2d 974, 978–79 (1988))
The downsides of joint wills
Joint wills aren’t very popular, and for good reason. They can really tie your hands down the road. Here’s the deal: once one person dies, the surviving spouse can’t change the will no matter what.
Think about it: what if you have more kids, or remarry, or need to sell some property to cover expenses? With a joint will, you’re stuck with the original plan. That can cause some serious headaches, like…
- …not being able to provide for a new child.
- …having to leave an inheritance to a beneficiary who’s struggling with addiction.
- …being unable to access assets you might desperately need.
Note: This is not true in every state. Some states do not have a presumption that you’re “stuck with what you signed” in a joint will. So it all depends on your state law.
Why would someone want a joint will?
With all those downsides, you may be wondering why someone would get a joint will. Here are the benefits of a joint will:
- Cheaper than getting two wills
- Protects the surviving spouse by ensuring they get everything when one spouse dies (if that’s what they want)
- Protects children and ensures children are provided for (if that’s what the couple wants)
- It can simplify the process if a couple has the same wishes for their assets
- In some states, it can ensure that the wishes cannot be changed even when one partner dies
- Older couples may be more inclined to get joint wills since there’s less likelihood of life and beneficiary changes
- Good for couples with simple estates and simple beneficiary structures
Alternatives to joint wills
Let’s talk about alternatives to joint wills. Maybe a joint will isn’t for you, but you still like the aspect of protecting your spouse and having some level of cohesiveness in your estate plan. Here are some ideas:
The mirror will
A “mirror will” is simply two individual wills that a couple may get that reflects the same wishes as the other person. It does almost the same exact thing as a joint will, but each person executes their own will, and it doesn’t “lock them in” once the first person dies.
Trusts
A trust offers couples greater flexibility in estate planning compared to a joint will. It allows for asset control during your lifetime and easier adjustments after one spouse passes, unlike a joint will, which usually becomes irrevocable. Trusts also provide options for managing assets in case of incapacity and can be tailored to specific family situations, making them a more adaptable solution.
Joint tenancy with a right of survivorship
Joint tenancy with the right of survivorship allows two or more people to own property together, and upon one person’s death, their share automatically passes to the surviving owner(s), bypassing probate and avoiding the restrictions of a joint will.
Transfer on death
Transfer-on-death accounts and deeds offer another way to transfer assets directly to a surviving spouse upon the first spouse’s death. Transfer-on-death accounts, like bank accounts or investment accounts, allow you to designate a beneficiary who will inherit the account’s contents automatically, such as a surviving spouse.
The bottom line on joint wills
In conclusion, joint wills offer an efficient approach to estate planning, particularly appealing to couples with shared goals and straightforward estates/beneficiaries. This approach fosters transparency and can provide reassurance that wishes will be honored after the first partner’s death. However, the inherent inflexibility of joint wills can create challenges if unforeseen circumstances arise. Therefore, couples should carefully weigh the benefits of simplicity against the potential limitations of a joint will, considering regular individual wills or trusts as alternatives that offer greater adaptability for future needs.
Nicole Sheehey is the Head of Legal Content at HelloPrenup, and an Illinois licensed attorney. She has a wealth of knowledge and experience when it comes to prenuptial agreements. Nicole has Juris Doctor from John Marshall Law School. She has a deep understanding of the legal and financial implications of prenuptial agreements, and enjoys writing and collaborating with other attorneys on the nuances of the law. Nicole is passionate about helping couples locate the information they need when it comes to prenuptial agreements. You can reach Nicole here: Nicole@Helloprenup.com
0 Comments