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Joint Will: What is a Mutual Will?

What exactly is a joint will and is it preferable to setting up individual wills for spouses? Trust & Will explains what you need to know about joint wills.

Patrick Hicks

Patrick Hicks, @PatrickHicks

Head of Legal, Trust & Will

If you’re exploring estate planning options as a married couple, you might be wondering if you should be getting a joint will. Joint wills for married couples are alternatives to setting up individual wills. So, what exactly is a joint will, and how does it work? How does it differ from an individual will, and is one better than the other? Keep reading to find out.

What is a Joint Will?

A joint will is a shared legal document that is executed by two or more people, and serves as the last will and testament for all parties involved. Joint wills are most commonly used by married couples who share the same assets and beneficiaries.

In case you’re not familiar with the concept of a will, it’s a type of estate planning document that designates the distribution of assets upon your death. It’s a legally-binding method of protecting your property and making sure it’s passed on to your loved ones in a rightful way. There are many different types of wills, with joint wills being just one of them. 

To clarify, a joint will is different from a mutual will. A joint will is one document signed by two people. A mutual will represents two individual wills that are signed separately, but are largely the same in content.

How Do Joint Wills Work? 

No different from individual wills, joint wills designate how assets should be distributed upon your death. However, joint wills are unique in that they have been signed by two people. This means that both participating individuals must be in complete agreement with the terms of the will.

A joint will is revocable while both partners are alive, meaning that it can be revoked or modified, as long as both parties are in agreement. However, when one partner dies, the joint will automatically becomes irrevocable. This means that it is set in stone as-is; no one can make changes or revoke the will from that point on.

In the case of a married couple, the surviving spouse inherits the estate as a whole. When the surviving spouse also passes away, the estate is inherited by the beneficiaries as stated in the will. In most cases, the beneficiaries will be the children of the married couple. It should be noted here that the estate must go through probate when both spouses have died, unless the couple had arranged for the assets to be transferred into a joint trust. 

Joint Will vs Individual Will - Pros & Cons

A joint will is a nice option for married couples who share the same assets and beneficiaries. This is especially true if your estate is relatively simple, and you are both in total agreement about how you want your assets distributed. 

Aside from simplification, a joint will provides checks and balances. You can’t make any changes or revoke the will without permission from your partner. This means that the estate is protected from rash decisions if a marital dispute arises. It also offers protection when there’s any mistrust in the marriage, or potential for foul play. 

Anyone considering a joint will should consider its potential disadvantages. A joint will becomes irrevocable when one partner passes away. This means that the surviving partner has no power to change the will, or how the estate will be distributed. This could present a major problem if their circumstances change. For example, the surviving partner could get married again and have more children. They could have a falling out with their child, or need to sell the house in an emergency. Life is unpredictable, and this inflexibility often turns into more of a hindrance than a means of protection.

Do Husband and Wife Need Separate Wills?

In most cases, a husband and wife need separate wills. Rather, it’s highly recommended. As we explained above, joint wills make sense for some couples, but not all. First, joint wills aren’t legal in all states. Further, a probate judge might even separate a joint will or even invalidate it. When one spouse passes away, the will becomes irrevocable, offering no flexibility for the surviving spouse. It’s recommended that each partner has their individual, separate wills for the most protection.

What Happens With a Joint Will When One Person Dies?

When one person dies, a joint will becomes irrevocable. As we explained earlier, this means that the will can no longer be changed, modified, or revoked. Circumstances often change, yet the surviving spouse is stuck with the terms of the will as-is. Let’s discuss a few scenarios where this could become an issue. 

First, let’s say that the surviving spouse needs to pay for medical bills or elder care. Many families leverage their home for capital in a pinch. Because the family home was included in the joint will, the surviving spouse can’t sell it to help cover their expenses. As you might imagine, a joint will could end up causing financial duress for someone you love. 

Second, a joint will prevents the surviving spouse from changing any terms, including the beneficiaries. To clarify, beneficiaries are the named heirs of the estate and are most oftentimes the children. If the surviving spouse remarries, then their new spouse legally cannot inherit any assets included in the joint will. The surviving spouse also can’t add any new children or stepchildren as beneficiaries. 

Last but not least, the surviving spouse cannot change the terms of how assets are distributed. If a beneficiary develops a drug addiction, mental illness, or a disability, this would typically be a good reason to change the terms of a will. For example, a parent might want to set up a spendthrift trust so that the child can’t spend their inheritance recklessly. Because the joint will is irrevocable at this point, these changes cannot be made. 

Can You Create Joint Wills Online?

One of the reasons why there are so many different types of wills is that estate planning is a highly individualized process. We all have such unique family structures, assets, and other personal circumstances. There is no one-size-fits-all solution.

A joint will can be a great option for married couples who have a relatively simple estate, and completely agree on how they want to distribute assets to their shared beneficiaries. However, they might not be a great choice for mixed families, or couples with unconventional asset structures. Last but not least, always keep in mind that life is unpredictable. Because a joint will becomes irrevocable, or set in stone, once one partner dies, it can become more of a hindrance than a measure of protection for the surviving family members. You may want to consider setting up individual wills, mutual wills, and joint trusts instead. 

If you’d like to move forward, you can create joint wills online. Trust & Will offers affordable options that allow you to set up a will in a matter of minutes. If you’re not sure how to get started, or want more help finding a type of will that’s right for you, don’t hesitate to work with one of our representatives!

Is there a question here we didn’t answer? Reach out to us today or Chat with a live member support representative!


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