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WHAT IS THE BEST LAST WILL & TESTAMENT STRUCTURE FOR A HUSBAND & WIFE?

Should a Married Couple Have Two Individual Will Documents? Or One Joint Last Will and Testament Covering Both?

When a husband and wife are looking to create a Last Will and Testament document for the first time ever, there is usually one common question that comes to mind immediately: should we make one Will that covers both of us, or two individual Wills?

Of course, there will always be some couples who have unique personal situations that require highly customized Will documents. But the vast majority of married couples usually want the same thing: to leave their joint marital property first to the surviving spouse and then to their children (if there are any, and assuming the spouse is no longer living).

Given this most common desire, what's the best legal strategy to make the Will document creation process easy? And what structure is best suited to keeping the probate process simple and straight-forward after one of the spouses pass?

A Joint Will or Individual Wills for a Husband and Wife?

For most married couples trying to decide the best Will creation option for their personal situation, Standard Legal suggests separate individual Will documents be created for each spouse.

While some attorneys and Will authors like to create a single Will document for both husband and wife (often referred to as a "Combined Will" or "Reciprocal Will"), Standard Legal finds that creating an individual Last Will & Testament for each spouse offers a better legal option for 'real life' reasons.

With a Combined Will, when one spouse dies, the original Will must be submitted to the Probate Court. When that happens, the information contained in the Will is often made available to the public for inspection and review, which can create privacy issues for the entire family.

Further, the fact that the original Will is submitted to the Probate Court upon the passing of the first spouse can create new issues should the other spouse die while the first estate is still being probated. Obtaining a copy of the original Combined Will for filing with the probate court for the "second to die" spouse could create difficulties, especially if the "second to die" spouse has moved his or her home to a jurisdiction different from the location where the first spouse's Will is being probated.

Given these scenarios, utilizing separate, individual Wills for each spouse is preferred.

Husband and Wife Wills That Work Together

The Will documents for each spouse can be written to mirror each other, so that the first spouse to die leaves his or her property to the surviving spouse and then to their children, if any.

Each of these individual Wills for each spouse can also reinforce the couple's choices by naming the same guardians for any minor children and for outlining if the estate assets are to be distributed per capita or per stirpes.

These separate and individual Wills accomplish the same goal as the Combined Will while eliminating a variety of probate issues. It is for these reasons that Standard Legal provides individual Wills for all family members through both its legal forms software and document preparation packages.

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