Q. My husband and I are thinking about making our wills. Wewill be leaving everything to the other and then to be equallydivided among our three children. Because the terms of each of ourwills are going to be exactly the same, wouldn't it be just as goodand perhaps somewhat easier and cheaper to prepare one joint will forthe both of us? I know it is possible, but lawyers seem to adviseagainst it.
Is there any valid reason against joint wills other than thatthe fees for two simple wills probably are more than for one simplewill?
A. There are several reasons, and a higher fee isn't one ofthem. In fact, with the simple wills you describe, to avoid thepossible problems that could arise with joint (or joint and mutualwills - they're not the same) wills, having it written might be morecomplicated and expensive than a pair of single wills.
First, when it comes to the writing of wills, the use of preciselanguage to spell out precise intentions is essential. For example,your statement, "We will be leaving everything to the other and thento be divided equally among our three children" is ambiguous. Do youwant to leave everything to the surviving spouse without any strings,with the surviving spouse leaving his or her estate to the threechildren? Or do you want to leave to the surviving spouse only alife estate in everything, with whatever is left upon the death ofthe surviving spouse going to the three children?
Or is it your intention that the surviving spouse is to geteverything without strings - which is probably what you do mean -with a further agreement between you and your husband that thesurviving spouse will leave his or her entire estate equally to thethree children? If this is your intention, is it also your intentionthat this agreement shall be irrevocable so that the surviving spousewould never be able to change his or her will if the circumstanceschange many years from now?
A joint will is simply two separate and distinct wills, usuallythose of husband and wife and usually with similar terms, written asone document. When the first spouse dies, the joint will as itpertains to the estate of the deceased spouse is probated. When thesurviving spouse dies, the part of the document pertaining to thesurviving spouse's estate is then probated.
The only difference between one joint will and two individualwills, besides saving a few sheets of paper, is the additional redtape caused if the surviving spouse has moved to anotherjurisdiction. Say the survivor's will has to be probated in Florida,but the will is part of the permanent files of the probate court herein Illinois. Surely this is no insurmountable problem, but avoidingthis possibility surely outweighs the saving of a few sheets ofpaper.
Of much greater importance is the possibility that someone couldinterpret the joint will as a joint and mutual will - and that couldcreate a big problem.
With a joint and mutual will, each of the testators has agreedthat this is how their individual estates shall be distributed upontheir deaths. It is a contract between the two of them, and upon thedeath of the first, the contract becomes binding on the survivor andthe will of the survivor has now become irrevocable.
Perhaps at the moment you don't care if your will as you nowplan it becomes irrevocable. But during the intervening yearsbetween the death of the first of you and the death of the survivor,conditions may have changed dramatically.
Furthermore, in the case of a large estate, a joint and mutualwill could have serious tax consequences because if the will isinterpreted as leaving the wife what would essentially be only a lifeestate in the property, with whatever is left going to the children,the IRS could take the position that the life estate bequest to thesurviving spouse does not qualify for the 100 percent maritaldeduction. This would subject the estate to taxes it might otherwisenot have to pay.
Send legal questions to Leonard Groupe, Chicago Sun-Times, 401 N.Wabash, Chicago 60611. Questions of general interest will beanswered in the column.
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