A last will is one of the most recognizable estate planning tools. If you want to give some of your assets to loved ones after your death, a will can help you do that.
But what if you and your spouse want to leave your shared assets to children or family members? A joint will (also called a “mutual will”) could be an option. The joint will attorneys at Hunter Sargent, PLLC can help you determine whether a joint will is the best option for you.
How a Joint Will Works
A joint will is a legal document that allows two people to create one shared will instead of separate wills. It’s almost always created by a married couple. Here’s a breakdown of how it works:
- If the couple completely agrees on how assets should be distributed, they may choose to create a joint will
- The will usually stipulates that when one spouse dies, the other inherits the assets
- It usually also stipulates that after the surviving spouse dies, the assets will go to the couple’s children
- As long as both spouses are alive, they can change the terms of the joint will
- When one spouse dies, the will becomes irrevocable and legally binding
The fact that the will cannot be changed even if the surviving spouse remarries or has additional children can be problematic. The probate court often must look closely at the terms of the will to establish whether it is actually legally enforceable.
Because of the complexities that can arise with joint wills, they are outlawed in some states. However, under Texas state law, they are legal. An estate planning lawyer can help you review benefits and drawbacks and determine whether a joint will is the right choice).
Creating a Joint Will
The process of creating a joint will is not terribly complicated. Before seeing a joint will attorney, you and your spouse should take the time to discuss your assets and how you hope to distribute them after your death.
Because a joint will effectively combine your will and your spouse’s will into one, it’s essential for you to be in complete agreement about who gets what.
If you determine that you want the same things, the next step is for you and your spouse to take a look at your entire estate and inventory of all of your assets (including bank accounts, real estate, life insurance policies, and more) and decide how you wish to distribute them.
You should also choose an executor — someone responsible for estate administration.
Once you have decided on your beneficiaries and executor, you should consult a joint will attorney. When you create a joint will (or any kind of will), it is essential to ensure the right language is used. Your estate planning attorney will be able to word your will in a way that ensures your wishes are carried out after death.
Challenges That May Arise With Joint Wills
The main challenge that arises with joint wills is the fact that after one spouse dies, the will cannot be modified for any reason. Many people who remarry want to revise their wills to include new spouses, new minor children, and even stepchildren.
As a result of that inflexibility, joint wills can cause bitter inheritance disputes. They can also take time to resolve in probate. Probate costs money, so the actual value of the inheritance can decrease dramatically.
Pros and Cons of Joint Wills
Like all estate planning documents, joint wills have their advantages and disadvantages. These are some of the pros of joint wills:
- They are relatively inexpensive and easy to create
- They allow shared assets to be passed to one spouse (without going through probate) after the other spouse dies
- They give you the peace of mind of knowing assets will be distributed according to the wishes of both spouses
However, joint wills also have disadvantages:
- The surviving spouse cannot change the will (or create a new will) to include stepchildren or new children
- The surviving spouse cannot decide to leave their assets to a new spouse if they remarry
- If the surviving spouse falls on hard times and needs to sell property to make ends meet, they may not legally do so
Because joint wills are so inflexible, many couples go with a different type of will. However, that doesn’t mean a joint will not be right for your family.
Frequently Asked Questions
Before deciding on a joint will or any other estate planning tool, you should thoroughly understand the terms involved. Here are some common questions.
What Is a Joint Will?
A joint will is a will created by two people (usually a married couple) who want their assets to go to the same beneficiaries.
Can You Update a Joint Will?
You can but only if both you and your spouse are still alive and you both agree on the changes. After one spouse dies, the will cannot be changed.
What Are the Requirements for Joint Wills?
The primary requirement for creating a joint will is that you and your spouse both agree to all terms of the will. You must also agree that once one of you dies, the will cannot be modified.
How Can Joint Wills Be Revoked?
A joint will can only be changed or revoked if both spouses are still alive and the spouse who wants to revoke or change the will has the permission of the other. After one spouse dies, the will is no longer revocable. However, if a probate court judge determines that the language in the will doesn’t constitute a binding contract, they might invalidate the will.
What Are the Alternatives to Joint Wills?
“Mirror wills” are one of the best alternatives to joint wills because they accomplish essentially the same objectives — without imposing the same restrictions on a surviving spouse that joint wills do. With mirroring wills, each spouse leaves their property to the other.
An even simpler (but still effective) alternative in Texas is the community property survivorship agreement. With this agreement, if one spouse dies, all shared property goes straight to the surviving spouse without having to go through the probate process first.
Let a Joint Will Attorney Help You Prepare for the Future
At Hunter Sargent, PLLC, our team can help you determine whether a joint will, one of its alternatives, or even another kind of strategy altogether is right for you. Get in touch to set up your consultation today!