Joint and Mutual Wills

What is a joint will?

A joint will is a single document in which two people, typically a married couple, choose to dispose of their property at death in an agreed upon manner. The usual joint will dictates that the surviving spouse shall inherit all the property of the first to die. After the death of the second spouse, the property is disposed of as specified in the document. A joint will impresses a trust on the surviving spouse’s estate. Ultimately, the survivor is holding a life estate in the decedent (person who passed away)’s property for the benefit of someone else, though they may deplete as much of the property as they sees fit. In plain terms, the survivor spouse has the right to use the property however they choose, but after the survivor dies, property is distributed to each of their heirs according to the joint will.

Are mirror, mutual, and reciprocal wills just more names for a joint will?

No, but the concepts are similar. Mirror or reciprocal wills are separate documents with identical terms except for the names of the testators. These documents usually provide that all property of one spouse will go to the survivor of them, much like a joint will, but do not have additional provisions that differ. Mutual wills are also separate documents in which the testators agree to provide for each other and include additional terms, usually specifying what will happen to the estate after both spouses have died. Typically, a spouse will leave everything to the survivor spouse for their lifetime and leave the remainder to someone else – like the example given of a joint will above.

I’ve heard that joint and mutual wills are contracts. Is this true?

Often joint and mutual wills involve an agreement that is meant to be a contract – binding one another to its terms and keeping the surviving spouse from revoking or altering it. Essentially, one spouse is choosing this particular scheme for distributing their property at death in consideration of the fact that the other spouse is choosing their particular, usually similar, scheme.

In Kentucky, a contract to make or not to revoke a will must be in writing. The will must expressly reference a contract, evidence proving the contract, or must contain all material contractual provisions. KRS 394.540(1). Without one of these requirements, there is no enforceable contract. Prior to 1972 in Kentucky (and today in many jurisdictions), a joint or mutual will was presumed to be an irrevocable contract. Now, Kentucky law clearly states that the execution of joint or mutual wills does not create a presumption that there was a contract not to revoke without the requirements above. See Martin v. Cassady, 628 S.W. 2d 888 (1982).

What are the benefits of these kinds of wills?

There are several presumed benefits of joints wills. Primarily, they are convenient: one document, one fee, one simple set of terms. While individual wills are the prevailing type, spouses sometimes express an interest in joint or mutual wills because they have children from a previous relationship. They use a joint will to ensure that their spouse is taken care of during her life and that the estate is passed to his children at death.

Do joint wills still go through probate?

Yes. The will is admitted to probate when the first spouse dies and again when the second spouse dies. Even if there is a contract not to revoke, however, the survivor spouse may elect to renounce the will and take the statutory share, as Kentucky courts have distinguished revocation from renunciation. See Bauer v. Piercy, 912 S.W. 2d 457 (1995).

My spouse and I want to leave everything to each other. Why incur the expense of having separate wills?

In many states, it is not advisable to have joint or mutual wills because they are presumed to be irrevocable. In Kentucky, this is not the case unless the will(s) meets the criteria discussed above. However, problems remain. First of all, a joint will (single document) is the will of both testators, so it takes both testators to revoke it. Even without a contract not to revoke, this feature can make it difficult to change your mind. Further, without a contract not to revoke, there is really nothing guaranteeing the agreement. If your spouse is free to revoke the will after you pass, you cannot ensure that your distribution scheme will be followed. Alternatively, having a contract not to revoke usually guarantees the agreement too rigidly. There is little flexibility to alter provisions that may become outdated over time.

What if we have a valid contract not to revoke? It seems like a good way to settle the issue and ensure everything is distributed according to plan.

A joint or mutual will with a contract not to revoke may ensure that your spouse sticks to his or her word, but there is still the problem of unanticipated changed circumstances. Someday, the plan you and your spouse made may not make sense, especially if one spouse long outlives the other. The survivor may live on for decades and during that time remarry, have more or fewer assets, and perhaps more children. Under any of these circumstances, it would be advisable for an individual to execute a new will or codicil. Because of the contract, however, the surviving spouse may incur a lengthy legal process to invalidate the contract. This scenario, quite common in modern blended families, seems to frustrate the purpose of having a will in the first place. Finally, even an ironclad agreement may not guarantee the distribution plan you envisioned. Your surviving spouse may deplete the assets in your estate during his or her lifetime, undermining the agreement and leaving little for your intended remaindermen (those who would receive gifts at the surviving spouse’s death).

Can you have a holographic (handwritten) joint will?

No. Holographic wills must be entirely in the handwriting of a single testator. KRS 394.040.

If my spouse and I agree to have reciprocal wills, does my spouse have to follow through?

Not without a writing. An oral agreement to write a will or to not revoke a will is not enforceable in Kentucky. KRS 394.540(1). Also, the mere expression of the desire to make a will or leave certain property to someone without the requirements of a valid contract (such as mutual obligations) will not be binding.

I have children from a previous marriage and I want to be sure they are taken care of when I’m gone. What are my alternatives to a joint or mutual will?

You can certainly achieve this goal and avoid the pitfalls of a joint will. A popular method is to have an individual will with a testamentary trust. This is a trust that kicks in after your death. You appoint someone trustworthy to act as executor and manage the property for the benefit of your children. If you’d like, you could include provisions to support your current spouse during his or her life as well. Of course, you could leave property to minor children without a trust and have a guardian manage it, but this is often not advisable because the child will take the full amount of property outright at age eighteen. A trust provides more flexibility in terms of distributing the property.

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