What is a joint will?

Should I Get a Joint Will?

Article written by Illinois & Iowa Attorney Kevin O'Flaherty
Updated on
February 21, 2020

In this article, we’ll discuss joint wills, and answer questions like, “What is a joint will?”, “Why and when would someone get a joint will?”, and “How do I get a joint will?”

Estate planning can feel like a daunting task, especially when trying to do research on your own without a qualified professional to guide you. Often it’s not something someone even begins to think about until they’ve amassed or a certain amount of assets or have more responsibility, usually in the form of children. So when a married couple starts to think about what might happen to their assets if one or the other dies they may come across what’s called a joint will when doing research. A joint will is essentially a single will shared between two people, typically spouses. The joint will entitles one spouse to inherit the entire estate upon the death of the other spouse. When put simply, it sounds pretty like a good option and less work since it is one document for two people. However, there is a lot to consider when planning for the future and a joint will is most likely not the best option.

What is a joint will?

A joint will is a single document jointly signed by two or more individuals, which combines the party’s last will and testament. With a joint will, the surviving party will inherit the entire estate, and after the death of the surviving party, the estate will be transferred to the children. Beyond just covering more than one person under one will the joint will also acts as a binding contract that prohibits the participants from making changes to the will after the other(s) die. You may be thinking, “Well, this is what we both want, the same thing.” But, things can change with time and often do. The survivor being beholden to any agreements made under the joint will can lead to some messy legal ramifications later on. 

Disadvantages of a joint will

While the legality of a joint will can still be contested in Illinois, having your hands tied by a joint will after marriage can create a number of potential problems, including:

  • You or your spouse die relatively young. You get re-married, but the joint will with your ex-spouse limits your ability to include your new spouse, children, etc into the existing will or new trust.
  • An issue with a child arises and continues past the death of one spouse. The options available regarding changing inheritance for that child are restricted due to the joint will.
  • The joint will can interfere with the surviving party’s wish to help grandchildren with college expenses or give out an early inheritance
  • If a piece of property is listed under the joint will it could be restricted from being sold or rented by the surviving spouse under the language of the joint will
  • If a child is irresponsible with his or her money and spends in an extravagant way, the surviving spouse can’t change the joint will to limit funds available to that child. 

Joint wills are generally considered relics of estate planning. The number of cons associated with joint wills greatly outweighs the benefits, especially when compared to other estate planning tools. While the law may vary from state to state with regard to enforcement of the articles laid out in a joint will, Illinois seems to allow for some flexibility with regard to challenging the language of a joint will. For example, if the joint will did not use explicit language regarding inheritance or some other topic and this is challenged by the surviving party he or she may win the ability to move forward with whatever action. However, when the provisions of the will are reciprocal, and this is normal in the case of mutual wills (which are different from standard joint wills), and it appears the provisions were made in consideration of each other, the will becomes a joint and mutual will and enforceable as a contract. A joint and mutual will may become irrevocable after death, especially if evidence shows that provisions in the will were made in consideration and upon explicit agreement between the parties. 

Bottom line, pretty much any estate planning professional will steer you away from a joint will because of all the inherent negatives associated with this type of plan. The convenience of having one will between two or more people and the possibility to save a little money will be greatly outweighed by the potential headaches that could arise from a joint will. For more information on estate planning tools check out our other articles on Learn About Law.

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Should I get a joint will?

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