Creating a Joint Will

Couples who are beginning the process of planning their estate and are also concerned about protecting the inheritances of their children may want to consider creating a joint will. These wills govern the estate of more than a single person and are considered jointly binding, which means that if one person passes away, the other party is required to adhere to the will’s terms. To learn more about joint wills and whether they are right for you and your family, please contact a member of our experienced estate planning legal team today.

What are Joint Wills?

Joint wills allow two parties to dispose of their property at death in a single document. Usually entered into by married couples or those who are in serious relationships, joint wills almost always ensure that all of a deceased spouse’s property will be inherited by the surviving spouse. Once the second spouse passes away, the property will be disposed of as dictated by the will.

Mutual wills are similar to joint wills, although they involve the creation of two separate instruments that contain reciprocal terms. If a joint will contains reciprocal terms, it can also be considered mutual.

Pros and Cons

There are a number of benefits to creating a joint will. For example, joint wills are convenient, only requiring the drafting of a single document and the payment of a single fee. They are also a good choice for couples who have children from a previous relationship as they ensure that a surviving spouse will be provided for, but that the estate will also be passed on to the children after his or her death. Joint wills also become irrevocable upon the first testator’s death if the document is found to be contractual. Mutual wills are not usually presumed to be contractual in the absence of clear and convincing evidence, so when deciding whether a joint will qualifies as a contract, courts primarily look to the intent of the testators, which requires an analysis of a number of factors, including:

  • Whether the document was labeled joint and mutual;
  • Whether the will leaves the entire estate to another party;
  • Whether the testators’ assets were pooled into a single joint fund;
  • Whether the remainder of the estate will be disposed of to the couple’s heirs in roughly equal shares after the surviving spouse’s death;
  • Whether the will expressly states that a contract exists; and
  • Whether the testators used common plural terms, such as we and our when drafting the will.

Evidence of the testators’ intent is also not restricted to the will itself, as a number of courts have looked to the testimony of the attorney who helped draft the will when attempting to determine intent.

Call Today to Schedule a Consultation with an Experienced Chicago Estate Planning Attorney

Although joint wills can save couples time and money if drafted correctly, they are not always the best estate planning tool, so if you have questions about whether creating a joint will is right for you, please contact one of the dedicated estate planning lawyers at Orlowsky & Wilson, Ltd. Attorneys at Law by calling 847-325-5559 today.

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