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Joint Wills

To ensure that their partner would have financial security if one dies away first, couples occasionally inquire about joint wills and whether they are the best alternative. Joint wills were once a popular estate-planning technique.

But nowadays, most estate planning lawyers acknowledge that these strategies frequently cause more issues than they resolve.

In Canada, married spouses and partners frequently employ joint wills, also referred to as mutual or conjoint wills. These wills allow both individuals to provide for one another once they pass away.

What is a joint will?

A joint will can be regarded as a legal document made by two or more people, usually a married couple or partners, that spells out how their assets will be dispersed after they pass away.

Since everyone signs the same copy of the same paper simultaneously, everyone will have the same terms and conditions.

Couples who wish to guarantee that their assets are dispersed in a specified manner after their deaths may find a joint will very helpful.

For instance, a joint will can be used to guarantee that the other partner receives that partner’s assets in the event of one spouse’s passing. This can make the probate procedure easier to understand and save both parties money and time.

Joint wills are normally unchangeable without everyone’s approval. The combined will would be revoked if one person changed their mind after it had been executed.

Therefore they would need to make a new will. This is one of the drawbacks of joint wills because it might not be appropriate in every circumstance.

How joint wills works in Canada

Joint will specify how assets should be distributed after your death, just like individual wills do. The fact that two persons have signed joint wills makes them special. This means that both participants must fully accept the will’s provisions.

While both partners are still living, a joint will is revocable. This means that it may be changed or canceled with the consent of both partners.

However, the partnership will automatically become irrevocable if one partner passes away. This means that the will is now irrevocable and cannot be altered.

If a married couple is involved, the surviving spouse entirely inherits the estate. The beneficiaries named in the will inherit the inheritance when the surviving spouse also goes away. The offspring of the married pair will often be the beneficiaries.

Unless the couple had made arrangements for the assets to be transferred into a joint trust, it should be highlighted that the estate must undergo probate when both spouses have passed away.

How to create a joint will

Making a joint will is the same as making any other kind. You might be able to create your own will online utilizing a software program or website if your estate is quite straightforward. On the other hand, if your estate is more complicated, you might want to consult with an estate planning lawyer.

You should specify which assets go into your will, whether joint or not and how they should be distributed. The will would then be created in accordance with the laws of your state, and you would make sure it was valid by having it witnessed and, if necessary, notarized.

Since not all states permit them, it is crucial to investigate your state’s will regulations before beginning the joint will-making procedure.

What happens when one person passes away with a joint will

As it was being mentioned earlier, a joint will become irrevocable upon the death of one party. This signifies that the will can no longer be amended, modified, or revoked, as we discussed earlier.

Even though circumstances frequently change, the surviving spouse must follow the terms of the will. Let’s go over a few situations where this might become a problem.

Let’s assume that the surviving spouse must cover medical expenses or elder care. Many families use their homes as a source of emergency capital.

The surviving spouse cannot sell the family house to help with bills because it was a part of the joint will. As you would guess, someone you care about might face financial hardship due to a joint will.

On the other hand, a joint will forbids the surviving spouse from altering any provisions, including the beneficiaries. To be clear, beneficiaries are the estate’s designated heirs, who are typically the children.

Any property specified in the joint will cannot be lawfully passed to the surviving spouse’s new spouse if they remarry. Additionally, no new children or stepchildren may be added as beneficiaries by the surviving spouse.

Finally, the surviving spouse is not permitted to modify the terms of how assets are allocated. Generally, a beneficiary’s development of a drug addiction or disability would serve as a good justification for altering the terms of a will.

For instance, a parent might want to establish a spendthrift trust to prevent the child from wasting their inheritance. These amendments cannot be made since the joint will is irrevocable.

Why you might not want a joint will

Outside of married couples, joint wills are uncommon, and they are also uncommon within married couples.

Married couples can typically benefit from creating two separate wills rather than a single will, despite the fact that it may seem easy to lock in a plan for both spouses at once because it might lead to issues.

Due to the requirement that both spouses agree to amend a will, this is particularly true when one spouse outlives the other.

Until both spouses pass away, a joint will is subject to change. Therefore, the spouses can agree on revocation and amendments (like by adding a codicil). That implies that after one person passes away, the other person will no longer be able to modify the will. It is now regarded as final and irrevocable.

The challenge presented by a joint will is the difficulty in predicting how life may change when one spouse outlives the other. A surviving spouse may be in a challenging situation if they lack the ability to adapt.

Beneficiaries may experience something that renders them ineligible to receive anything from the will. One illustration is when a beneficiary designation in a will refers to a company that later ceases to exist. 

A surviving spouse may have little choice but to challenge the will in court if they want to make modifications.

Advantages of using a joint will

Making a joint will provide some finality regarding what happens to your possessions once you die away, which is one of the key advantages. A combined will cannot be amended or canceled without both will-makers’ approval. 

The ability of the surviving spouse to keep the property and assets amassed throughout the marriage can also be reassured by joint wills. Additionally, a joint will agreement can guarantee that your children get your estate in the manner you both desire.

Even if one spouse were to later remarry, it wouldn’t affect anything if the will’s terms clearly say that children will receive any remaining assets after both will makers pass away.

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Problems associated with using a joint will

In Canada, joint wills can result in a number of issues. Among the most pressing problems are:

Lack of flexibility

Once a joint will is signed, it is final and cannot be modified without both parties’ agreement. The combined will would be revoked if one person changed their mind after it had been executed.

Therefore, they would need to make a new will. In the event that the couple’s situation changes, such as through divorce or the birth of a child, this lack of adaptability may become problematic.

Limited applicability

Since Quebec does not recognize joint wills, a joint will may not be appropriate if the couple resides there or owns assets there.

Possibility of fraud

Because both parties sign a joint will at the same time, there is a chance that one party will take advantage of the situation to have an unfair advantage over the other. As a result, it may happen that one party does not have all the information necessary to decide how to divide their assets after death.

Possibility of revoking

One party to a joint will has the right to do so at any moment. If this occurs, the other party may no longer have a will, in which case the assets will be allocated in accordance with intestate succession laws.

Probate process complexity

If one of the parties passes away, the distribution of assets will be determined by reviewing the joint will, which might make the probate process more difficult.

Alternatives to a joint will

Although they make sense in theory, joint wills can be difficult to implement. Consider one of these options while creating your estate plan to avoid problems.

Reciprocal wills

In the reciprocal will, each spouse drafts a separate revocable will and names the other as their main beneficiary. They designate dependent beneficiaries to be their offspring or other intended beneficiaries. So, after the second spouse dies, the remaining beneficiaries receive the estate.

Trusts

Trusts is one of the most popular methods for transferring a designated beneficiary’s share of your inheritance upon death is through a trust.

When you establish a trust, you effectively transfer ownership of your assets to a third party, which subsequently distributes those assets to your beneficiaries in response to the fulfillment of predetermined criteria (usually your death). You can generally avoid probate if you use trusts.

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September 5, 2023
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FAQs about joint wills in Canada

What is a holographic will?

A fully handwritten will that is dated, signed, and dated in the maker's own handwriting is known as a holographic will (the "testator"). Several Canadian provinces, including Quebec, Saskatchewan, and Alberta, recognize holographic wills as a valid method of allocating your estate after your death.  

Does a holographic will need to be witnessed?

Holographic won't call for eyewitnesses. There are no set formalities that must be followed when making one, nor are they required to be notarized or signed by any witnesses. However, it's crucial to keep in mind that holographic wills may be more susceptible to legal challenges if there is any uncertainty about their legality. Make sure your holographic will is as precise and clear as possible to improve the likelihood that the courts will accept it.  

What is holographic will?

A holographic will is one that is totally written, dated, and signed in the maker's own handwriting (the "testator"). Several Canadian provinces, including Quebec, Saskatchewan, and Alberta, recognize holographic wills as a valid method of allocating your estate after your death. There are no particular formalities that must be followed while drafting a holographic will, and it is not necessary to have it witnessed or notarized. If there is any ambiguity regarding their legitimacy, they can be more open to legal challenges. Make sure your holographic will is as precise and clear as possible to improve the likelihood that the courts will accept it. 

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