Every estate planning lawyer will tell you that a joint last will, usually created by a married couple, is generally a bad idea. This doesn't mean married couples don't have wills, but rather that they should consider getting separate wills, not a joint will. If you have minor children, it can be best to create separate documents that leave your assets to each other and then name the other as executor of your estate.
A last will is a legal document that will in all likelihood be needed at some point in your life. A last will is often called a "last will," "final will," or "death will." While many people presume that mutual (joint) wills for married couples are cheaper and easier to create than two separate wills, this is simply not true for many reasons, including the fact that courts may look down on joint wills made by married couples when one of them outlives the other because joint wills can put extra strain on surviving spouses who are also trying to settle their own affairs.
Problems with Joint Will For Married Couples
A joint will may seem the easier path and more practical to save on costs and time. However, joint wills for married couples are very seldomly used and for good reason. There are many issues that arise from a joint will that should remain top of mind as you look to create your will. Some of the problems with joint wills include:
- Many probate judges don't like joint wills and often separate the will for each party, or even invalidate the joint will.
- Joint wills aren't legal in some states.
- A joint will is like an irrevocable contract—once the first spouse passes away, the second spouse cannot change the joint will even if circumstances have changed.
- The inability to change a joint will after the first spouse dies could have assets and property tied up for years, so the surviving spouse can't downsize the marital home, or sell it to pay for assisted living or expenses.
- Because a joint will for married couples is irrevocable, after the first spouse dies, the surviving spouse can't disinherit anyone and can't put money in a trust for an adult child who spends money recklessly.
- It doesn't allow the surviving spouse to change beneficiaries or executors, add new beneficiaries who were born after you made the will, or allow beneficiaries to get their inheritance sooner.
- Failure to have separate wills prevents the surviving spouse from changing beneficiaries, so if that spouse remarries, their new spouse and stepchildren cannot inherit assets listed in the joint will.
Best Type of Will For Married Couples
While you and your spouse can change your joint will during life, after one spouse dies, a joint will is irrevocable.
Separate wills may offer more flexibility than a joint will. In Separate wills, each spouse can have identical provisions if they want, but after the first spouse dies, the surviving spouse can amend their will to reflect any changes in their lives, such as having new (grand) children, a new spouse, or new stepchildren.
In separate wills, the spouses can have provisions that aren’t identical, although spouses should choose the same guardian for their children in case they both die simultaneously.
In that rare situation, if there's a conflict between the wills, a court will have to choose the guardian, so it's important for spouses to discuss these provisions before making separate wills that don't mirror each other. Make sure you discuss your estate with an attorney or with an online legal service when making your wills.
When your situation changes so should your will!
The good news is that once you do your will on wills.com once, you can always come back and make amendments free of charge for the rest of your life ensuring that you will always have an up-to-date state-specific legal will.
Once you’ve done your first will we recommend that you review your will every few years to ensure that the assets you’ve spent a lifetime acquiring end up in the right hands and have an adequate guardian appointed for any underaged children.
If there are things in your life that have changed and you decide to make changes to your original will you can’t just start crossing things out or change beneficiaries in your original will. You’ll need a codicil which is an amendment to the will. Or a new will to replace the old one. In most cases getting a new will is better than adding a codicil because codicils often cause confusion.
Especially if you want to remove a beneficiary, it’s better to make a new will this ensures there is no evidence of the prior beneficiary. This minimizes the risk of the original beneficiary contesting the codicil down the line. The same applies to changing executors - it's better to start with a clean slate and clearly stipulate your latest wishes and have your will notarized as soon as you finish proofreading your last will and testament.
The great thing about wills.com is that once you’ve created a will with us once you are welcome to come back 24/7 to make a new will without any additional charges apart from the cost of the onsite notary services - Only applies if your state allows for remote online notarization.
Send us an email at [email protected] if you have any questions regarding online notarizations.
If you and your spouse want to be sure that your wishes will be respected after your death, you should consider making separate wills. With a joint will, you'll have no idea what your spouse's lawyer can do to change it or even completely disregard it. By making mirror wills, separate wills with different provisions or trust, or two independent wills with a trust, you'll leave less room for doubt that the court will follow your wishes.
Getting Legal Advice
If you have any doubts we strongly recommend you reach out to an estate-planning attorney near you and have them sit down with you around the table to examine your personal situation and figure out what is the best solution for your situation