Disadvantages of a Joint Will

A Joint Will Is a Bad Idea!

Lately we’ve received a lot of questions regarding having a joint will. They’re kind of rare, but I thought I’d add a blog to give you my spin on them. Generally joint wills are created between a married couple. They make a joint decision as to who is going to get their property, how it will be received, when it will be received, and who is going to be in charge of their estate upon their death. These wills usually say that everything will go to the surviving spouse. Sounds simple enough, right?

The presumption is that these types of wills are simple and cheap, but that’s not always true. There are several problems with a joint will that we’ll discuss here. Many people assume that joint wills avoid probate. But as we’ve mentioned in previous blogs, that depends on how the assets are titled.

What is a Joint Will?

Simply put, a joint will is a contact between spouses that is irrevocable, meaning it can’t be changed. If I create a joint will with my wife, neither one of us can change it without the consent of the other spouse. This often creates a lack of flexibility when it comes to estate planning. If one spouse passes, the other spouse is held to whatever the joint will says. It can’t be changed after one spouse passes.

If the surviving spouse wants to get a smaller house, they can’t because the house is in a joint will and subject to probate. The will can’t be revoked after the death of a spouse. All the joint wills I’ve seen include a provision that states it can’t be changed independently of the other spouse. If one spouse tried to change it, they would be opening themselves to a legal battle for breach of contract.

But if each spouse has their own will, either spouse can change it without the consent of the other. I can put whatever I want in my will. That’s my choice. And my wife can do the same. When married couples are considering a joint will, I always tell them to think twice. The inflexibility of the joint will can cause a lot of problems when one spouse passes.

Why Would You Want a Joint Will?

At this point you may be wondering why anyone would want a joint will. Some couples like them because their children are then locked into their inheritance. It ensures that the desires of both spouses are followed permanently. Some people feel comfortable knowing that if their spouse was to pass, they would have a place to live and the kids are going to still get their appropriate inheritance.

In these cases, it provides some peace of mind for a couple going forward. Another potential benefit comes into play if the surviving spouse remarries. A joint will ensures that the original children are guaranteed to receive their intended inheritance. This prevents disputes from happening between stepparents and stepchildren.

Separate Wills Are Always Better

The drawbacks to a joint will significantly outweigh the few benefits discussed above. If you’re the surviving spouse in a joint will situation, you’re stuck. Life is unpredictable. New grandchildren and great grandchildren could be born after the death of one spouse. But in the case of a joint will, you have no flexibility to provide for those new family members.

You can’t make any adjustments to inheritances even under special circumstances. I’ve seen cases where kids become estranged after one spouse passes. But under the joint will, that estranged child would still receive their share of the inheritance. You may not want that. You also won’t be able to help grandchildren with college or other expenses.

Under the joint will, you can’t sell or gift assets that are listed in the will. You can’t add restrictions on money to be inherited. Maybe you have an adult child that has some creditor issues or is involved in a messy divorce. Although they may not be financially responsible, they’ll still receive whatever the joint will says they’re going to receive. You can’t make any adjustments because you’re stuck.

Separate wills are always better because they’re flexible. Your wills can mirror each other, but each spouse should have their own individual will. You can make adjustments in your personal will to protect your children if a remarriage happens after you pass. You can also put assets in a testamentary trust with restrictions on certain assets. This is a much better option than a joint will.

Life brings unexpected changes that include death, divorce, births, etc. You want your will to be flexible so that you can accommodate these changes. I recommend going over your will every couple years to account for new family members and other changes. Keep it updated so that you are prepared and have a solid estate plan in place.

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