Wrongful Death Lawyer
Let’s say you are married and both you and your spouse would like to draft a joint will. In other words, this would enable you both to leave your estate to one another, and eventually your children. Although a joint will is not the only option for married couples, some people do prefer it. This is because a joint will allows the spouse to inherit the entire estate after the other spouse passes away. However, there are many things to consider before choosing this type of will.
Understanding a Joint Will
A joint will is a will that has been jointly drafted, or executed, by at least 2 parties. Although a joint will could be drafted by an entire family, for example, when it is used, married couples tend to be the drafters. Once both spouses die, their children will receive the estate. Unlike a mutual will with reciprocal provisions, a joint will does not included this.
How a Joint Will Can Have Legal Repercussions
A joint will is considered to be a legal contract. It cannot be changed by just one of the parties in the will. Rather, both have to be involved. So, for example, if the will is to be revoked or modified, each spouse must mutually do so. Once one dies, the joint will cannot be modified or revoked. This is true even if the other spouse remarries or would like to update the will in anyway.
Today, very rarely are joint wills used. This is because there are so many potentials for problems to occur and very few advantages. Go back five or so decades and joint wills were preferred because they saved time and money. Because wills can be easily drafted by a lawyer, the real advantages to a joint will are slim.
One of the most notable problems with a joint will is the surviving spouse will be unable to alter the terms in anyway – regardless of any circumstances that could arise after their spouses death. Another problem may be when the surviving spouse would like to disinherit one of the beneficiaries due to any reason thinkable. They cannot do so if their spouse has died. Nor can they do so if their spouse is alive, but is against this decision.
Finally, if the joint will was created many decades ago, and a spouse died soon after the drafting of the document. The surviving spouse can still be obligated to adhere to the terms of the will – even if they have remarried, had children, and so forth.
Does a Joint Will Need to Go Through Probate
In general, the surviving spouse of a joint will does not need to probate the estate. Rather it will pass immediately to them once their spouse has died. When the remaining spouse dies, and the estate goes to the beneficiaries, the will does need to go through the probate process.
A joint will is not the only way to transfer your property and assets to your spouse, or any other party. If you are concerned about probate, and do not want your spouse to have to go through the probate process, after your untimely death, it is advisable to talk with Memphis probate and estate administration lawyers to find out about your options.
Thank you to our friends and contributors at Wiseman Bray, PLLC for their insight into estate planning and probate for a joint will.