A joint will is a testamentary instrument for two individuals in the same document. Joint wills are sometimes used by married couples to pass their estates using identical provisions for each spouse. In most joint wills, a husband and wife bequeath all their property to each other. Upon the death of the surviving spouse, the surviving spouseís property passes according to provisions that were agreed upon by both spouses and contained in the joint will executed by both of them.
For information on other types of wills, such as basic wills and pour-over wills, see Types of Wills.
Joint wills often provide that upon the death of the surviving spouse, all their property shall pass to their children. While both spouses can agree to change or revoke the joint will while they are both living, the surviving testator in a joint will is generally prevented from changing the joint will or making a new will after the first testator dies. The joint will is admitted to probate when the first spouse dies and again upon the death of the surviving spouse.Joint wills are not recognized in some states. To find state laws on the requirements to make a valid will, go to state laws. Consult an attorney about whether a joint will is valid in your state.
Disadvantages of Making a Joint Will
There are many disadvantages to using a joint will instead of making your own individual will. The surviving testator may live for many years after the first testatorís death. Therefore, it is impractical to bind the surviving testator to a joint will that cannot be revised to correspond with changes that are almost certain to occur over the course of oneís lifetime.
For example, if the surviving spouse experiences a major life change such as remarriage, a move to another state or the death of a child, the existence of a joint will may make it impossible for the surviving testator to amend his or her estate plan to address these changes.
Also, if the surviving spouse needs to sell property that is ultimately bequeathed to other heirs in the joint will, the surviving spouse may be unable to sell such property, resulting in a financial crisis for the surviving spouse. Joint wills frequently result in costly probate litigation. If each spouse wants to make a will with provisions that mirror their spouseís will, they can do this in their own individual will without using a joint will. One reason a married couple may want to make a joint will is they want assurance that all marital property or community property will be passed to their children after the surviving spouse dies. A husband or wife may have legitimate concerns that the surviving spouse will disinherit one of the children in favor of someone else or leave the estate to a church or charity. However, there are better estate planning methods other than joint wills that can be used to ensure each spouse's property is distributed according to his or her wishes. Another reason people are interested in joint wills is they assume it costs less to make one will than two. But when a will is drafted for two people, the attorney still must render advice regarding the estates of both individuals, so any cost savings from using a joint will is likely to be minimal. Also, any money you save by using a joint will is likely to be outweighed by the problems that may arise with your estate later, including legal fees, as a result of using a joint will.
Before making a joint will, consult an estate planning attorney. For information on how to make your own will or living trust, see Will and Trust Books.
INFORMATION ON THIS SITE, INCLUDING ARTICLES, ESTATE PLANNING FORMS, AND THE ESTATE PLANNING BLOG, IS NOT LEGAL ADVICE. Pennyborn.com is not a law firm and is not a substitute for a lawyer. Your use of this site does not create an attorney-client relationship.