Breaking down a Joint Will, Mutual Wills and Reciprocal Wills.
You and your spouse probably want to draft a will together. You may wish to leave your entire belongings to each other and eventually to your kids. One such way to accomplish that is creating what is known as a joint will. A joint will makes it possible for the remaining spouse to inherit the entire estate upon the death of the other. However, there are several factors that need to be carefully balanced to determine if drafting a joint will would be the best option for you. This article covers the legal effects and potential problems of joint wills, mutual wills and reciprocal or mirrors wills.
Mutual wills are usually drafted by two people following a separate agreement between them to create wills and to not revoke them without the consent of the other. Each partner would have a separate last will making provisions for the other on fundamentally similar terms, dealing with the same estate.
The parties will also draft a binding contract between them, which will typically state that:
Each of them will leave their belongings to mutually agreed on beneficiaries;
The two will agree that neither party will revoke or make changes to their will without the consent of the other as long as they are together.
If one partner dies, the surviving partner will also not revoke or make changes to their will in an attempt to change the mutually agreed beneficiaries.
The agreement can be made in writing or orally. It is advisable to have this agreement on a separate document and have the terms of it reflected in the mutual wills to avoid future problems of having to prove the agreement.
The beneficiaries are also supposed to be aware that the wills they are benefiting from are mutual. This can be ensured by putting it in writing as well. This would allow the beneficiaries to protect their interests in case the surviving partner tries to create a new will with new terms.
A mirror will is almost similar to a mutual will, but it has lesser restrictions. The two parties involved will draft two separate wills that have similar terms. There is, however, no binding agreement required between the two people for the mirror wills to be made. Each of the individuals making the wills is fully aware that the other might change the terms of their own side of the will as they see fit.
Mirror wills don't necessarily need to be identical; they should, however, mirror each other when it comes to the testators' mutually agreed wishes. The terms relating to estate administration and inheritance issues have to be exactly the same. A mirror will allows parties to mention who they both wish to inherit specific possessions.
A joint will is a single document drafted by two or more persons, which will work as their separate wills. When the first person dies, the survivor(s) becomes the trustee of all the assets mentioned in the joint will. This type of will cannot be changed without all the testators' consent.
There are several reasons why people might consider drafting a joint will. They might want to jointly appoint someone to oversee the distribution of their assets. Before making a joint will, it is advisable, however, to make sure that the courts will uphold and enforce them. It is also important to note that joint wills are more difficult for a testator to change as compared to regular wills. Joint wills might lead to serious inconveniences upon the death of one testator.
You might also find it difficult to locate a law firm that provides the service of drafting joint wills.
How to create a joint will
Joint wills are quite similar to standard wills, and you can draft them in pretty much the same ways. You can find an estate planning attorney who can help you to draft a document that carries all the necessary information. Drafting your own will, using an online template, is also another option. This might be a preferable option if you wish to save money.
It is possible to draft a legal and acceptable will even if you don't go through an attorney. Each of those methods work. It is, however, advisable to engage an attorney if your estate is vast and complicated. You can also do that if you want to distribute assets to many beneficiaries.
Why you might not want a joint or mutual will
While joint wills might sound like the most simplified way to handle your estate after death, they're very inflexible documents that can put people in a fix when circumstances change or if one testator long outlives the other. It is also important to note that some states do not recognize joint wills, and this decreases their usefulness.
A joint will is easy to revoke as long as both spouses are alive. If they both agree to revoke it and make changes, they just have to cosign, and it can be done. When one spouse dies, it becomes impossible for the remaining one to make any changes or revoke the joint will. At this point, the joint will is considered irrevocable.
It is quite difficult to predict how life might change when one spouse dies and leaves the other. Without the flexibility to amend the will, the surviving spouse might find themselves in a complicated and difficult situation.
It can also happen that one of the beneficiaries in the will can become unsuitable. An example of such a situation is when the will designates an organization as a beneficiary, and then it stops operating altogether. The only way to contest the will in such a situation would be through court action.
Is it possible to revoke a Mutual/Mirror/Joint Will
The answer to that question is both yes and no. The will can be revoked if both testators are still alive and it is quite difficult to make any changes to it in the case that one of the testators dies.
Revoking the will can be done by:
Writing a new will;
Expressing the intention to revoke the will in writing
A mirror will would be quite easy to revoke without any legal consequences in the case that one of the testators dies. This is because the parties are not bound by any agreement or contract which stops them from revoking the will without the consent of the other. The remaining would be free to revoke their will as and when they see fit.
The joint, however, is quite difficult to revoke since it is written by two parties and represents their wishes in a single document. To revoke this kind of will, the consent of both parties needs to be obtained. It is also important to note that the surviving spouse cannot just revoke the will as and when they see fit. Any will that is written by either of the parties without the express consent of the other cannot be enforced.
The same applies to mutual wills; the surviving spouse is not free to revoke the will because parties are bound by an express agreement not to revoke the will. Violation of the agreement can result in lawsuits by the beneficiaries.