Should we have a joint will or separate wills?

There are many factors that go into the structure of a will. Most importantly, family makeup and your wishes for how your property is disbursed after your passing. Most individuals with a modest estate and who simply want their possessions to transfer to a spouse, children, friends, or charities can get by with a simple will. When people want to get into investments, forming trusts, and other complicated transactions where they want to typically provide for minor children on an ongoing basis then a more complex will may be necessary. Most people can utilize a simple will and accomplish all their wishes. If two or more people are interested in a will (typically a husband and wife or significant other/partner) the decision must be made whether those individuals want separate wills or joint will. Iowa allows joint wills, however, I strongly suggest separate wills. There are very good reasons that I suggest separate wills. I have included some information here to help you make an informed decision. A joint will is a single will that’s signed by two people, usually a married couple, leaving all their assets to each other. Seems simple and sensible—but it’s almost always a bad idea. The Idea of a Joint Will Typically, a joint will provides that:

  • when one spouse dies, the survivor will inherit everything, and

  • when the second spouse dies, everything will go to the children.

Most joint wills also contain a provision stating that neither spouse can change or revoke the will alone—which means that the will can’t be changed after the first spouse dies. A conventional will is always revocable. But a joint will is really a binding legal contract, which cannot be revoked or changed after one spouse has died if the will includes a contractual provision. However, under the Uniform Probate Code, the execution of a joint will or mutual will does not create a presumption of a contract not to revoke the will. Still, it is better to avoid the possibility of confusion or even dispute when the time comes to probate your estate. A joint will appears to fulfill many couples’ wishes and address some of their key concerns. First, as many couples want, it provides that the survivor will inherit all the property of the first spouse when they die. Second, it’s then assured that no matter what happens after that, the children will eventually inherit everything. For example, if the survivor remarried, the children wouldn’t have to worry that their inheritance would go to their new stepparent. Instead, because the terms of the joint will would be locked in, they would be guaranteed to inherit. Joint Wills in Real Life: Potential Problems Today, estate planning lawyers advise against joint wills, and they are rarely used. The reason is that making it impossible for the surviving spouse to change the terms of the will can turn out to be a very bad result. The survivor—who may live years or decades after the first spouse’s death—cannot react to changed life circumstances, and the family may suffer as a result. For example, the survivor might not be able to:

  • Give an adult child some of his inheritance early—perhaps to buy a house or start a business

  • Help grandchildren with college expenses

  • Put restrictions on the money that will be inherited by a child who is financially irresponsible

  • Sell the family home and buy something smaller, or move into an assisted living facility

  • Sell or give away other assets covered by the will

​There can also be estate tax complications if the estate is very large. As you can see, the disadvantages of a joint will can be disastrous and most anything that people may want to accomplish with a joint will can be addressed better in separate wills. Please consider this information and discuss the pros and cons.

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Disclaimer: The information on this website is intended to be informational only and does not establish an attorney-client relationship, nor is it meant to be legal advice for a specific matter. An email or a web form submission does not establish an attorney-client relationship. Readers should not act upon any information without seeking the advice of professional counsel.

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