Barbara Sadler: Joint Wills

As a probate lawyer, I often get asked questions about wills and trusts. Usually, you and your spouse will want to make a will together to leave the entire estate to each other and eventually to your children. While it is not the only way, a joint will allows one spouse to inherit the entire estate upon the death of the other spouse. However, you will need to carefully balance many factors to determine if creating a joint will is the best option for you. Read on to learn about joint wills, their legal effects, and potential problems and issues.

What Are Joint Wills?

A joint will is a type of will that is jointly executed by two or more persons, usually a married couple, which combines the parties’ last will and testament. Under a joint will, the surviving party inherits the entire estate when the other party passes away. Between a married couple, the entire estate will usually go to the spouses’ children upon the death of the second spouse. Keep in mind that joint wills are different than joint and mutual wills, which contain reciprocal provisions that make the property distributions dependent on the other.

Legal Effects of Joint Wills

A joint will is a legal contract that cannot be changed or revoked by one party alone. The parties may revoke the will during their lifetime through mutual consent. However, once one of the parties passes away, the joint will cannot be revoked. Even if the surviving spouse remarries after the death of the other spouse, the terms of the joint will remain unchanged and the surviving spouse must comply with them. At Ascent Law, we really believe that having a will or joint wills if you are married is a vital part of estate planning and it should not be ignored or put off for another day.

Problems of Joint Wills

Joint wills are rarely used today because of potential problems and lack of advantages. Back in the day, joint wills were preferred over other types of wills because they saved time and additional labor. However, now that wills can be easily created on a computer, there’s no clear advantage to joint wills in most cases.

One of the biggest potential problems is that the surviving spouse is unable to change the terms of the will, regardless of the changed circumstances after the death of his or her spouse. For example, when the surviving spouse remarries another person and wants to leave some of the assets to his or her stepchild, the joint will prevents the surviving spouse to leave any part of the estate to that stepchild.

Another problem may arise if the surviving spouse wants to disinherit the child. Even if the spouses’ child abandons the family and stays disconnected with the surviving spouse, the surviving spouse still cannot disinherit the child without an approval of the deceased spouse.

Moreover, the surviving spouse may be tied up with the terms of the joint will for a long time. Say that the spouses got married when they were young and one of the spouses dies soon after their marriage. Now, the surviving spouse can be tied up with the terms of their joint will for decades.

Good Alternative to a Joint Will

A joint will isn’t the only way to transfer the estate to another person. If a married couple wants to make sure their children inherit everything after their deaths, the couple can set up a trust that contains the provisions of their wishes and restrictions. By setting up a trust, you are able to control who will manage the property for the benefit of your children, modify any terms of the trust, or entirely revoke the trust during your lifetime.

Free Consultation with a Utah Estate Lawyer

If you are here, you probably have an estate issue you need help with, call Ascent Law for your free estate law consultation (801) 676-5506. We want to help you.