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What is a Joint Will?

Estate Planners | Monday, June 6th, 2011

When two people make a will together, the instrument is known as a joint will. In a joint will, the two people making the will bequeath all of their assets and property to one another. The joint will also contains provisions concerning the distribution of assets and property when the second person passes away. Essentially, the joint will is a type of contract between two people. And for this reason, it takes both testators in a joint will in order for the will to be revoked. There are both advantages and drawbacks to the joint will.

Advantages of the Joint Will

The design of the joint will prohibits the surviving spouse (or other person in the joint will, as this type of will is not just for married couples) from modifying the wishes of the first spouse (or person) to die in regards to the distribution of the assets and property that were bequeathed by the provisions of the will. For instance, if a testator was worried that his surviving wife might remarry after his death and that she might rewrite a new will whereby she bequeaths everything to her new spouse or to his children, the joint will structure would prevent that occurrence from becoming a possibility. Another advantage of the joint will is that it is a simple way to plan your estate, assuming that both parties are comfortable with all of the terms of the will and that you understand its implications.

Drawbacks of the Joint Will

There are also some drawbacks to the joint will. A joint will can tie up property for many years (until the death of the second spouse or second testator) and revisions are only possible to reflect changed circumstances only. During this time, it is entirely possibly (and often the case) that the surviving testator might experience life changes that would make drafting a new will plausible, but not permissible because the deceased testator cannot approve the changes. This leaves the surviving testator bound to the original will, or in a huge legal battle to invalidate the original will – which is sometimes successful but typically not. For illustration, let’s say that your wife dies before you do and that your daughter later marries a billionaire and no longer has a need for your money. In this instance, all of the property that was bequeathed to you via the joint will must be passed on per the will’s provisions regardless, even though you might feel (and the daughter might agree) that the money should be given to someone else.

Because a joint will is not the right type of will for everyone, it is invariably wise for married couples and others who are interested in this type of will to discuss all of their options with a qualified estate planner. A seasoned estate planner can explain the advantages and drawbacks of the joint will to you in greater detail, and can also help you determine if this will is the best tool for your estate and your family’s future.

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