Many spouses who have been married for decades and own all of their assets together believe they only need one joint will. That’s especially true if they have relatively uncomplicated assets and their plan is for whichever spouse outlives the other to inherit everything and eventually pass on all their assets to their children. A joint will can seem like the easiest, least expensive, most efficient way to accomplish these goals.
In fact, true joint wills are rarely used and may not be recognized as valid by a California probate court. The main issue is that once one spouse no longer has testamentary capacity (for example, due to dementia or other serious illness) or passes away, that will can no longer be modified for any reason by the surviving spouse. Modification requires both testators’ signatures.
How do reciprocal wills work?
A relatively simple alternative is to create two reciprocal (“mirror”) wills. These are two individual wills with essentially identical terms that mirror each other.
Typically, each person leaves all assets initially to their surviving spouse and designates that all assets remaining after that spouse has passed away go to their children and/or other beneficiaries. Each spouse can also designate that when they pass away, the children will get a specified amount. That way, they don’t have to wait until both parents are gone to get any inheritance.
Meanwhile, the surviving spouse is free to modify their own will if needed at any time. This could become necessary for any number of reasons. For example:
- An adult child named as a beneficiary may become incapable of handling an inheritance due to addiction, mental illness or simply poor money management skills.
- One child may warrant a larger inheritance than their siblings because they have had financial challenges, or maybe they have provided significantly more caregiving help to their parents.
- There’s a change in the law that warrants a modification for the will to remain valid or maybe to minimize taxes.
Note that with reciprocal wills, spouses can modify their wills separately or together while they’re both still alive. If they no longer have the same terms, they just won’t be reciprocal wills.
It is important to remember, however, that it’s typically best to have additional estate plan documents in place like advance directives and powers of attorney. These can make things easier for loved ones if a person becomes incapacitated.
When it comes to these and a host of other complicated concerns, seeking experienced estate planning guidance can help California couples to determine what will best meet their and their loved ones’ needs.
