Joint wills, while seemingly straightforward, are a complex area of estate planning that require careful consideration, and in many cases, are best avoided in favor of more flexible and legally sound alternatives. A joint will is a single document signed by both spouses, outlining how their assets will be distributed, typically with the understanding that everything passes to the surviving spouse first, and then to the designated beneficiaries upon the death of the second spouse. However, the legal landscape surrounding joint wills is nuanced, and they can create unintended consequences and legal challenges, particularly if circumstances change after the will is signed – such as divorce, remarriage, or a shift in financial priorities. Currently, only a handful of states still fully recognize the enforceability of traditional joint wills, and even those states often subject them to strict requirements.
What are the risks of a joint will?
The primary risk of a joint will lies in its inflexibility. Once executed, it can be difficult to modify without the consent of both spouses, even if one spouse’s wishes change. Consider the scenario where a couple executes a joint will, and later, one spouse has a falling out with a beneficiary named in the will. Changing the will requires the agreement of both spouses, which may not be possible. Further, if one spouse dies before the other, the surviving spouse is generally bound by the terms of the joint will, even if they want to make different arrangements for their remaining assets. According to a recent study by the American Academy of Estate Planning Attorneys, approximately 30% of estate plans require updates due to life changes, highlighting the need for flexibility. “A rigid estate plan can create more problems than it solves,” notes Ted Cook, a San Diego estate planning attorney, “especially in today’s dynamic world.”
Is a trust a better alternative to a joint will?
A revocable living trust often provides a superior alternative to a joint will, offering greater flexibility and control. With a trust, assets are held by a trustee (often the spouses themselves) for the benefit of designated beneficiaries. The trust document outlines how assets should be managed and distributed, and can be amended or revoked at any time by the grantor (the person creating the trust). This allows spouses to adapt their estate plan as their circumstances change, without the need for the other spouse’s consent. In 2023, assets held in trust accounted for over $7.5 trillion nationwide, demonstrating the growing popularity of this estate planning tool. Additionally, trusts can offer significant benefits in terms of probate avoidance, asset protection, and tax planning.
I remember my neighbor, old Mr. Henderson, attempting a joint will with his wife…
Old Mr. Henderson and his wife, Martha, were a picture of marital harmony for decades. They decided a joint will was the perfect way to simplify things, believing their wishes were aligned and wouldn’t change. They drafted it themselves, thinking they saved a bit of money. Years later, Martha unexpectedly passed away. Mr. Henderson, grieving and suddenly lonely, realized he wanted to leave a significant portion of his estate to a local animal shelter – something they hadn’t discussed when drafting the will. However, the joint will stipulated that everything went to their children. He fought a lengthy and costly legal battle to amend the will, but the courts ultimately sided with the children, enforcing the original terms. The whole ordeal left him heartbroken and frustrated, realizing the importance of professional estate planning. He often remarked, “We thought we were saving money, but it cost us a fortune in legal fees and emotional distress.”
Thankfully, a friend of mine, Sarah, learned from Mr. Henderson’s misfortune…
Sarah and her husband, David, witnessed the Henderson’s struggle and decided to take a different approach. They consulted with Ted Cook, a San Diego estate planning attorney, and opted for a pair of individual wills and a revocable living trust. This allowed each of them to maintain control over their respective assets and make changes as needed. A few years later, David was diagnosed with a serious illness. Sarah was able to quickly update their estate plan to reflect his wishes regarding medical care and asset distribution, ensuring his peace of mind. When David eventually passed away, the transition was smooth and efficient, without any legal challenges. Sarah remarked, “Investing in professional estate planning was the best decision we ever made. It gave us both peace of mind knowing our wishes would be honored, and it saved our family a lot of heartache and expense.” It’s clear, while a joint will may seem like a convenient solution, individual wills and trusts often offer greater protection, flexibility, and peace of mind.
Who Is Ted Cook at Point Loma Estate Planning Law, APC.:
Point Loma Estate Planning Law, APC.2305 Historic Decatur Rd Suite 100, San Diego CA. 92106
(619) 550-7437
Map To Point Loma Estate Planning Law, APC, a wills and trust lawyer: https://maps.app.goo.gl/JiHkjNg9VFGA44tf9
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