Do Both Husband and Wife Need Their Own Wills?

Your Will is a document that allows you to transfer the property that you own on your death to the people or groups that you want.  Since you can only transfer your property, and not your spouses’ property, they need their own Will to give their things to the folks that they want.

Rarely we will see a “joint” Will, which is one Will made for both the husband and the wife. These joint Wills were usually prepared many, many years ago when some attorney’s still used them.

There are many potential problems with having this type of Will. The most obvious is that the Will cannot be changed in any way after the first spouse dies. So if you want to later change a beneficiary, or change or add an Executor, or even do some tax planning, you can’t. You are locked in. If you have a joint Will, and you and your spouse still have capacity to make new ones, you and your spouse really need to make new separate Wills.

If you have any questions about making Wills, or would like a no-cost review to see if your current Wills do what you want them to, please give us a call or email to set up an appointment.

157 comments to Do Both Husband and Wife Need Their Own Wills?

  • Lydia

    My husband and I have lived together 32years 22years married. He is 25 years older than I and has 3 older kids and grand/great/grandchildren. We have a 17 year old together. We have a owned a home for 20 yrs and 2 old cars and a bunch of junk. He is eighty yrs and in excellent health. I am 55 and have a lot of health problems. We need wills but we don’t have a lot of money to pay for them. My husbands older children are all over 40 years old and are doing fine. We want to leave everything to our youngest child. What type of will would we need and how much does it cost. Our daughter is about to turn 18 and we don’t need a trust. So is there just a basic will that’s simple and low cost that we can get. We are both on social security. Thank you

  • Michell Bradie

    If you have filed the Will for probate and have been appointed as the Executor of the estate, you have authority to act on behalf of your mother’s estate. That may require that you file some action in the court to collect the assets of the estate that are in the possession of her husband if they are not supposed to pass to him. However, the burden of proof will be on you to show that he has wrongfully taken the property. You will need to discuss this with your attorney.

  • Michell Bradie

    You are welcome to call our office to discuss your estate planning needs if you live near by and we can discuss costs with you. Both you and your husband would each need your own Wills. The documents that our office prepares are not the least expensive documents that you can find out there, however we believe that the value provided for the services of our firm are very reasonable. We have have seen a lot of inexpensive on-line Will forms that have been just awful, and have wound up costing our clients a lot more to probate than if they had just paid an attorney to prepare their Wills properly the first time. Often times the old expression, “You get what you pay for” is true.

  • Ulysses Hester

    If planning to divorce my wife, would you advise me to use different attorney to draft my last will and testament. My thinking is that she might use some of my assets against me in a divorce proceeding.

  • Michell Bradie

    The attorney would likely not feel comfortable representing you unless there was disclosure of the fact to your current spouse, and your spouse waived any potential conflict. Most reputable attorneys would not want to be put in the position where the information that they obtained about one client could even potentially cause them to not be able to adequately represent the other client, so they would wind up withdrawing as counsel for both. So, yes, I would recommend that you use a different attorney, unless you have discussed this with your spouse, and you both agree to the representation, and the attorney agrees to it with the understanding that both clients are okay with it. Technically, joint representation can be acceptable if full disclosure is made and all parties agree, but I don’t believe most attorneys would like to be caught in between.

  • serena

    My husband and I are both traveling and would like to have a will that is only good if we both die together while on travel; what do we need to do?

  • Michell Bradie

    Each of you should both have your own Wills, rather than one Will. Your Will can certainly specify what should happen in the event that both of you die together, but it should also cover the event that only one of you should die. An attorney should be able to assist you with preparing Wills to cover each eventuality that could come up. It is possible to prepare Wills to cover the limited circumstance that you discussed, however, it wouldn’t really make much sense to limit it that way.

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