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PROBLEMS OF A JOINT WILL FOR MARRIED COUPLES


ANY ESTATE PLANNING LAWYER WILL TELL YOU THAT A JOINT WILL, USUALLY CREATED BY A
MARRIED COUPLE, IS GENERALLY A BAD IDEA.



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A joint will is a single will that's signed by two people, usually a married
couple, leaving all their assets to each other. Seems simple and sensible—but
it's almost always a bad idea. If you're an executor tasked with carrying out
someone's wishes, the good news is that you're unlikely to have to deal with a
joint will, because these days they're very seldom used.

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WHAT IS A JOINT WILL?

A joint will sets out the wishes of a couple in a single document that's signed
by both parties. It's usually a will for a married couple, with or without
children.

Typically, a joint will provides that:

 * when one spouse dies, the survivor will inherit everything, and
 * when the second spouse dies, everything will go to the children, if there are
   children.

A joint will appears to both fulfill many couples' wishes and address some of
their key concerns. First, as many couples want, it provides that the survivor
will inherit all the property of the first spouse to die. Second, it's then
assured that no matter what happens after that, the children will eventually
inherit everything. For example, if the survivor remarried, the children
wouldn't have to worry that their inheritance would go to their new stepparent.
Instead, because the terms of the joint will would be locked in, they would be
guaranteed to inherit.

Compare the concept of a joint will to that of a "mirror will," in which each
spouse creates a separate will but with reciprocal provisions—meaning they leave
the same property to each other.


CAN THE WILL BE CHANGED BY A SURVIVING SPOUSE?

Most joint wills also contain a provision stating that neither spouse can change
or revoke the will alone—which means that the will can't be changed after the
first spouse dies. A conventional will is always revocable. But a joint will is
really a binding legal contract, which cannot be revoked or changed after one
spouse has died.

Mutual wills, or mirror wills, are sometimes irrevocable as well. Spouses might
have come to a formal agreement not to revoke their separate mutual wills. And
even if they haven't, sometimes courts will interpret the circumstances to mean
that the couple meant for their joint wills never to be revoked.


POTENTIAL PROBLEMS WITH IRREVOCABLE JOINT WILLS

Today, estate planning lawyers advise against joint wills, and they are now
rarely used. Most lawyers will tell you that married couples need separate
wills, or they will point you to different types of trusts. The reason is that
making it impossible for the surviving spouse to change the terms of the will
can turn out to be a very bad result. Moreover, joint wills can tie the
surviving spouse's hands on even jointly owned property during the surviving
spouse's lifetime.

In other words, the survivor—who may live years or decades after the first
spouse's death—cannot react to changed life circumstances, and the family may
suffer as a result. A joint will is typically very inflexible and may restrict
you from many actions in ways you hadn't understood or anticipated.

For example, the survivor might not be able to:

 * Give an adult child some of his inheritance early—perhaps to buy a house or
   start a business
 * Help grandchildren with college expenses
 * Put restrictions on money that will be inherited by a child who is
   financially irresponsible
 * Sell the family home and buy something smaller, or move into an assisted
   living facility, or
 * Sell or give away other assets covered by the will.

As a result, joint wills can lead to disputes and litigation that exhausts the
time and resources of your loved ones.

There can also be estate tax complications if the estate is very large.

Some states (Wisconsin, for example), do not allow joint wills. If presented
with a joint will, a probate court in these states will try to separate the
document into two separate wills. If the document is written in a way that it
can only become effective when the second spouse dies, the court will refuse to
admit it to probate.


IS A JOINT WILL EVER A GOOD IDEA?

If you have a simple estate, completely agree with your spouse about where you
want your property to go after you die, neither of you get remarried, and your
circumstances don't change, a joint will is probably not going to cause problems
for you. However, few people can predict with certainty whether they will get
remarried, or what major events will happen in their lifetimes, often decades
after they create their wills.


ALTERNATIVES TO A JOINT WILL

For simple circumstances, most couples can simply make separate wills that are
revocable. Usually, these individual wills state that the will can be revoked at
any time. This preserves flexibility for both spouses.

But if each spouse wants to bind the other spouse to certain obligations in the
event that the spouse dies first, there are better approaches to take. For
example, if you want to be sure that your children—and not some possible future
second wife or husband of your spouse—will eventually inherit the family wealth,
you can accomplish this goal without resorting to an inflexible joint will.

Most commonly, parents set up trusts for their children, attaching whatever
restrictions they wish on the surviving spouse's use of the property, as well as
who will manage the money, and how old the children must be to receive it. But
other types of trusts are available as well. Generally, trusts are much more
flexible and adaptable to specific situations.


GETTING LEGAL ADVICE

If you're trying to create your estate plan and are considering a joint will,
talk to an estate planning lawyer first. If your circumstances are not
complicated, WillMaker can also help you make simple wills for a married couple.

If you're an executor and find yourself dealing with a joint will, talk to an
experienced probate lawyer. These wills can raise many questions, and you'll
need to proceed carefully.


Get Professional Help
Talk to an Estate Planning attorney.
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