A will, sometimes called a will and testament, is a document that an individual uses to dictate who will receive some or all of their assets after death.
A joint will is one that two people, typically a married couple, sign together. Instead of each spouse having a separate will, they have one document that they’ve both agreed to. Most joint wills are written such that when one spouse dies, their portion of the estate passes to the other. Then the entire estate goes to their children when the second spouse passes away.
Joint wills may sound like a simplified way to handle your assets after death, but they’re inflexible documents that can put people in a bind when circumstances change or if one spouse long outlives the other. Some states also don’t recognize joint wills, which decreases their usefulness.
How a joint will works
Just like a standard will, joint wills dictate what happens with your assets after your death. The difference is that two people have signed the will and agreed to abide by its terms, which express both of their wishes regarding their estate.
The most common signees of a joint will are a married couple. When one spouse dies, the other gets the entire estate. Upon the death of the second spouse, the estate passes to their children according to the terms of the will.
As with other wills, the estate may need to go through probate after both spouses have died and before assets pass on to the beneficiaries. Probate is a process where a state probate court oversees the transfer of assets. When there is a will, the court will use it as a starting point to determine how the estate is distributed.
Are joint wills and mutual wills the same?
Mutual wills are often lumped together with joint wills because they are very similar, but they do function a bit differently. A joint will is a single document shared between spouses, but with mutual wills each spouse has their own. The mutual wills are typically identical in content, but they don't have to be. There is a also a third document where both spouses affirm that they will adhere to their will in the event that the other dies first. Once one spouse dies, the wills cannot be changed.
What does each spouse own?
Some important knowledge with joint wills is what each spouse owns and what assets you can use a will to pass on. Since laws can vary by state, it’s a good idea to talk with an estate planning attorney if you have specific questions.
Community property states
In community property states, any property or money you earn after your marriage is equally owned by you and your spouse. Basically everything goes to your spouse when you die, unless you state otherwise in a valid will.
Common law states
Most states use a common law system for determining property ownership. In these states, you own something if your name is on the deed, title, or registration. If none of these documents exists, the owner is the one who paid for the property or received it as a gift. You have the right to pass on your property to whomever you choose. (Though in most cases you can’t completely prevent a spouse from inheriting some of your property.)
So if you share a car with your spouse but your name is on the title, then the car is your property upon your death and you can decide who gets it when you die.
In common law states, each spouse owns a half-interest in property if both of their names are on the title. In the majority of cases, your surviving spouse owns the property when you die.
On a more technical side, there are three types of joint ownership:
joint tenancy with right of survivorship
tenancy by the entirety
tenancy in common
With joint tenancy and tenancy by the entirety, your spouse becomes the full owner when you die. (These types of assets are not subject to probate.) When you own something by tenancy in common, you have the right to leave your ownership interest to someone after you die.
How to create a joint will
Joint wills are very similar to standard wills and you can create them in the same ways for around the same costs. An estate planning attorney can help you draft a document that includes all the necessary information, but it will almost always be more expensive than creating your will on your own. Using a template from the internet or online-will service can save you money.
Even a simple will can be a strong will whether you go through an attorney or use an online template. But an attorney can provide legal advice if you have a complicated estate or want to distribute your assets to many beneficiaries.
Why you may not want a joint will
Joint wills are not common outside of married couples, and they aren’t very common for married couples either. While it seems convenient to lock in a plan for both spouses at once, it can cause problems so married couples can usually benefit from two individual wills instead of making a joint will. This is especially true when one spouse outlives the other because both spouses must consent in order to make changes to the will.
As long as the two spouses are alive, a joint will is revocable. That means the spouses can agree to revoke it and make changes (like by adding a codicil). That means when one person dies, the other no longer has any way to make changes to the will. At this point it’s considered irrevocable.
The challenge posed by a joint will is that it’s difficult to predict how life may change when one spouse outlives the other. Without the flexibility to make changes, a surviving spouse can find themselves in a difficult situation.
It’s also possible something happens to beneficiaries, making them unsuitable to receive something from the will. One example is where a will designates an organization as beneficiary, but then it stops operating. (You should always have at least one primary beneficiary and at least one contingent beneficiary.)
The only recourse for a surviving spouse who wants to make changes may be to contest the will through court action.
Not all states recognize joint wills
Even if a couple goes through the work of creating a joint will, their state may not recognize it. As mentioned, an estate still goes through a probate court after both spouses pass away. The court may attempt to split the joint will into two separate wills. If they’re unable to do so, they may simply make inheritance decisions without the will.
In some cases, a court will also rule that once a spouse passes away, the other spouse can handle the estate however they wish. And while this could give a spouse flexibility, it also allows them to go against the original plans that both spouses agreed to. Make sure you have a good probate lawyer to prepare for these complex possibilities.
Alternatives to a joint will
Joint wills are good in theory but can pose challenges in practice. To avoid difficulties, consider one of these alternatives as part of your estate plan.
With a mirror will, or reciprocal will, each spouse creates their own revocable will and designates the other spouse as their primary beneficiary. Their children or other intended beneficiaries are named as contingent beneficiaries. So when the second spouse dies, the estate passes to the other beneficiaries.
A trust is one of the most common ways to pass your estate to specific beneficiaries after your death. Creating a trust functions like a third party that you give ownership of your assets to, and then the trust assets are distributed to your beneficiaries when certain pre-set conditions are met (usually your death). For the most part, trusts also allow you to avoid probate.