Sometimes, two individuals will decide to make their wills together, leaving their property and assets to each other. These types of wills are called a “joint will.” In a joint will, also known as a mutual will, two people (generally husband and wife) write their wills together to ensure that property is disposed of identically. This prevents the possibility of the wife or husband then remarrying and changing the beneficiaries of the shared estate.
A joint will is a separate distribution of property by each signatory and, as such, will be treated as such by the probate court. Mutual wills, virtually synonymous with joint wills, are mutually binding wills that serve the same purpose as a joint will, but are in the form of two or more wills, instead of a single document. Some states may not permit the use of a joint will and many assume that these forms will create a will contract.
There are four basic legal requirements for the enforceability of a joint will:
The joint will must be created in a specific legal form
The will, or wills, must be contractual in effect
The will must have an intention of irrevocability
The surviving party must have written the will with intention to reflect the agreement
As mentioned before, a joint will prevents the surviving person from changing his or her mind about where the shared estate reaches. This guarantees each person that their intents will be honored, no matter what happens after one dies. This type of will offers a certain amount of comfort, offering the peace of mind that the right beneficiaries will receive the estate.
However, there are a number of disadvantages that come with these types of wills. For example, there is always a question of revocability which is a possibility as long as both testators are still alive. Additionally, a joint will leaves assets tied up until both people die.
Making changes to such wills is also very difficult, often requiring the survivor to go through a lot of red tape. This event is especially difficult when one testator dies early, leaving property and assets tied up for years, even if the survivor undergoes many life changes in that time.
Choosing to draw a joint will is a decision that two people must make on their own. However, the pros and cons of these types of wills should be discussed with an attorney who specializes in estate planning. Many times, two separate wills with specific instructions and causes can accomplish the same thing.