When a married couple prepares an estate plan, they have the option of creating a joint will. A joint will is a legal document that outlines the wishes of both spouses for the distribution of assets upon their death. While joint wills may seem like an appealing low-cost option, there are several reasons why a married couple may be advised against this estate planning tool. In those situations, there are many alternative solutions a couple can explore to meet their planning needs and preferences.
The Challenges of Joint Wills
- Lack of control: With a joint will, the terms of the will become irrevocable after the death of the first spouse. The consequence of this is that the surviving spouse does not have control over the distribution of their assets because they are bound by the terms of the joint will. This can be problematic if the surviving spouse’s wishes are different or change from when the joint will was created. This often arises in instances of second marriages.
- Reduced Flexibility: A joint will requires the agreement of both spouses to make changes. This can be problematic when one spouse wants to make changes but the other does not agree or no longer can. For example, perhaps a new grandchild is born necessitating an update to the will but one spouse no longer has the required mental capacity to make changes to the joint will.
- Increased potential for disputes: Joint wills can lead to disputes between the surviving spouse and other beneficiaries. For example, if the joint will outlines that assets should pass equally to the couple’s surviving children, those children may be entitled to less of an inheritance if the surviving spouse were to remarry and die before the second spouse.
Alternatives to Joint Wills
One alternative solution to joint wills is mirror wills. Mirror wills are separate wills that contain nearly identical provisions but allow each spouse to change their will at any time and without requiring the other spouse’s consent. Mirror wills can overcome many of the challenges of joint wills that are described above. When combined with an asset protection trust, mirror wills can further decrease the likelihood of disputes while balancing the desire to preserve the wishes of the deceased spouse with the need to adjust for unplanned changes.
In addition to mirror trusts, another alternative solution for married couples that may not want a joint will is to establish separate trusts. Separate trusts can be set up to contain each spouse’s assets separately and distribute them according to their own instructions. Separate trusts offer some advantages such as more flexibility, privacy, and protection. Separate trusts can also help avoid probate, estate taxes, and creditors’ claims.
Depending on a couple’s situation and goals, there are many other solutions they may consider such as beneficiary designations, payable-on-death accounts, transfer-on-death deeds, life insurance policies, and charitable gifts.
This article is for educational purposes only - to provide you general information, not to provide specific legal advice. Use of this post does not create an attorney-client relationship and information contained herein should not be used as a substitute for competent legal advice from a licensed local estate attorney in NY or your state.
