I’ve been asked by married couples if they can just use a joint will as opposed to each spouse getting a will of their own. In these situations, typically each spouse wants to leave everything to the surviving spouse, and when the surviving spouse passes on later, they want everything to go to their children.
Technically, yes, a couple could use a joint will for this. However, it’s a very bad idea, and I would not ever use one. Nor would I ever create one for a client, even if they asked for one.
The main problem is that the surviving spouse cannot change the terms of the will. A will for one person is revocable. But a joint will is considered a legal contract that cannot be changed. This might sound like a great idea on the front end, but it could prove to be very problematic later on. The surviving spouse, who may end up living several years or even decades longer, may not be able to make financial decisions and adjustments that would be best for life circumstances that can and typically do change.
For example, the surviving spouse may not be able to help out a particular child or grandchild with major expenses such as college. Or they may not be able to give part of an inheritance early if the child or grandchild needs help with a down payment on a new house. Or perhaps later on one of their children has proven to be bad with money, but the surviving spouse wouldn’t be able to set up a trust to handle that child’s inheritance. The same things goes for is a child were to become incapacitated – no trust could be set up for that child.
And if the main concern is that both spouses do not want their children to possibly be partially or fully disinherited due to a future second wife or husband, they could create some sort of a trust for their children on the front end as opposed to creating a joint will.
Given how inexpensively a will can be created and that testamentary trusts could also protect the inheritance of their children, it just doesn’t make sense to use a joint will.
