We sometimes get asked to prepare a joint will for a married couple, but they are almost always a bad idea. Here's why:
What's a Joint Will?
A joint will is a single document that's signed by two people, typically a married couple. The idea is that, when one spouse dies, the survivor inherits everything. When the second spouse dies, everything will pass to the children. Sounds like a nice idea - certainly "easier" than each spouse writing their own will.
One of the aspects to a joint will, which is a double-edged sword, is that the will typically cannot be changed once one of the two signors dies. Indeed, for some folks, this appears at first glance to be the benefit: no matter what, when the second spouse dies, the children will inherit. No risk of a new spouse swooping in and "taking" the inheritance away from the kids.
So, what's the problem?
It turns out, in practice, that not being able to change your will once your spouse dies creates major problems. The reason is that the survivor has no ability to react to all the turns in the path of life that might happen after the death of a spouse.
Imagine a scenario where one signor dies shortly after writing the will, and the survivor lives for decades beyond. As life goes on, the survivor might want to create education funds for the grandkids. Or the survivor might want to advance an inheritance to a child to help them buy a home. A survivor may realize that one of their children ought to inherit their interest through a trust rather than directly as an outright gift. Or the survivor might want to sell the house to downsize or move into an assisted living facility. Maybe the tax laws change and the survivor wants to plan around those changes.
Here's the thing: if the survivor signed a joint will with the deceased spouse, he or she won't be able to do any of those things.
How do we solve the "future spouse" problem?
If a couple has concerns over making sure that the children receive the future inheritance, rather than some future second spouse, there are better options than a joint will. At Learned Lawyer, we would typically use a trust-based plan to place appropriate restrictions on a surviving spouse, while preserving the ability for the surviving spouse to adapt to changed circumstances.
In short, a joint will does not get us anything special, and hamstrings the surviving spouse to adapt to the future. So, that is why you should just say "no" to a joint will.
If you want help with wills, or trusts, or any other aspect of estate planning, do not hesitate to make an appointment today.
