What is a Joint Will?
A joint will is a single document that is created by two or more people (usually husband and wife) who want to leave all of their property to each other, with the remainder being distributed upon the survivor's death. Since a joint will has to be agreed upon and signed by both creators, it is treated as a contract, and therefore both parties have to agree to modify or revoke the will. Therefore, a joint will cannot be amdended or revoked once the first spouse dies.
What are disadvantages of a Joint Will?
The main disadvantage of a joint will, and the reason I never recommend a joint will to a client, is that it cannot be amended or revoked after the first spouse dies. This presents a problem when the first spouse dies, and the surviving spouse wants to change the will - due to remarriage, or simply due to a change in life circumstances.
As an example, let's assume that Dave and Jill are married, and in 1995 they created a joint will, whereby they left everything to each other, and then once they both pass, the remainder is to be distributed evenly between their two children. In 2010, Jill died, so Dave became the sole owner of their estate. In 2015, Dave gets remarried, to Becky. Dave has a much larger estate than Becky, including the house that he and Jill had purchased years before, so Dave wants to modify his will to leave part of his estate to his new wife.
But, Dave cannot modify his original will because it became non-modifiable and irrevocable upon Jill's death. Since Dave cannot change his original will, he decides to create a new will, which divides his estate evenly between Becky and his two children. So, Dave's estate is now divided three ways instead of two. When Dave dies, his two children will have a breach of contract claim under the first will since they are intended beneficiaries of that will (which is a contract).
As another example, let's assume that Dave and Jill have the same two children, Bill and Steve. After Jill died in 2010, Steve was in a car accident and is now incapacitated. All of his medical and day-to-day expenses are now covered by Medicaid. Under Medicaid law, almost all of any money Steve inherits has to be turned over to Medicaid to cover his expenses. So, Dave should change his will so Steve does not inherit half of his estate, but he cannot do so because the will became non-modifiable when Jill died.
Are there any advantages to a Joint Will?
Although I strongly discourage use of a joint will, there are some benefits to a joint will as opposed to separate wills. The first advantage is cost. In most circumstances, it should cost less for a married couple to create one will as opposed to two wills. The other advantage is that a joint will prevents the surviving spouse from changing his or her mind about the final distribution of assets after the first spouse dies. But, as the examples above illustrate, the disadvantages of a joint will far outweigh the advantages, and for that reason, I would not recommend the use of a joint will.
What is the alternative to a Joint Will?
For a married couple, the alternative to a joint will is for each spouse to have separate wills, or to use a trust. The decision to use a will or trust can be complicated depending on family circumstances, the size of the estate, and the goals the clients want to accomplish. Before deciding to use a will or a trust, be sure to meet with an attorney you trust who will explain the differences between the two documents, and the advantages and disadvantages of each.
To learn more about this and other Estate Planning topics, please visit my website at www.toburenlaw.com.
