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.
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Glad you like it. We hope that folks will find the information helpful and easy to understand.
What if the will first states that if one spouse dies that all their property goes to the other spouse, and then only in the case of the death of both spouse is there a plan for dividing up the estate?
I am not sure that I understand what you are asking.
Your question asks “What if the will states…” which implies you are talking about having only one Will. If you have a “joint Will”, or one Will for both you and your spouse, you really need to prepare new Wills; one for each of you. With a joint Will, once the first spouse dies, you still need to admit the Will to probate, but then you cannot ever make any changes or additions to the previously admitted Will. This can cause real problems if people you name die and you can’t make any changes.
If you both have Wills, then your question seems to imply that you do not have any division of property until the second spouse dies. However, leaving all of your property to your spouse is one way of dividing up the estate. You could also leave all of your property (your separate property and your share of the community estate) to your best friend, for example. Nothing says you have to leave it to your spouse, if you don’t want to.
So let’s say you both have Wills that leave everything to each other, and in the event that both of you die, it passes down equally to your children. What needs to be done? When the first spouse dies, that spouse’s Will needs to be admitted to probate for the Judge to determine that it is a valid Will. When that is done, it passes all the property to the surviving spouse. Once that happens, then all of the property is owned by the surviving spouse, and their Will (the surviving spouse’s Will) then determines how the property will pass on their death. The surviving spouse may prepare a new Will after the death of their spouse, or keep the distribution the same.
Please let me know if this has not answered your question.
I understand the limitation of “locking in” the spouse on a joint will. But if said will further states that “In the even of the death of one of the spouses the other is free to rewrite this will as he or she sees fit”. Won’t that simple addition remove the one negative point of joint wills?
(The positive for me is that it saves me the hassle of doing two wills).
Just adding the language in a joint Will that the spouse can rewrite or change the Will after the first spouse dies will not work. A joint Will cannot be changed, as a matter of law, after the death of the first spouse. It becomes irrevocable at that point.