Albuquerque Joint Will Lawyer

Joint wills combine two wills into a single document. Usually, these wills are created by each spouse in a married couple, but technically, they can be used by any two consenting parties. Once one of the joint will’s contributors (known as a testator) dies, the will’s provisions can become irrevocable.

In other words, the surviving testator may be unable to alter their own will after the death of a spouse (or another co-testator).

If a joint will completely disposes of the decedent’s separate and community property, then a joint will may not pose significant problems for the surviving spouse. However, sometimes a joint will designates that certain property is to be left to a specific beneficiary upon the death of both spouses.

If this is the case, then that property’s ownership is essentially “locked in” and cannot be legally altered.

Because of challenges like these, couples may want to consider creating separate wills. They can talk to an Albuquerque joint will lawyer to go over their options and select the best will and estate plan arrangements for their unique situation.

Find out more about joint wills and what you can do to ensure your estate plans work out the way you intend when you schedule a no-obligation consultation at New Mexico Financial Law. Schedule your confidential consultation now when you call 505-503-1637 or contact us online.

Questions to Consider With the Help of an Albuquerque Joint Will Attorney

Your last will and testament is, in many ways, one of the most important documents you will create during your lifetime. A will is especially important to your loved ones, whose memories of you may be colored by their experiences during and after probate. 

If special care is not taken to make estate plans that follow recommended best practices, then there could be significant heartbreak and strife. Heirs may also be left waiting years for probate to conclude if a joint will is contested, which could result in multiple appeals.

To ensure that any will you create would be capable of making your estate easier, not harder to manage, you can enlist the help of an experienced Albuquerque joint will attorney. Your attorney can review your estate’s asset portfolio and make recommendations based on your wishes for who gets what.

As part of the process, they can help you answer specific questions about managing an estate after your death or the death of a spouse, including questions like:

• Is the joint will going to completely dispose of the decedent’s estate? Or are certain assets going to be reserved for specific beneficiaries until the surviving spouse dies? (Note that the second option can create issues with estate planning for the surviving spouse.)
• Would you be open to alternatives to making a joint will, such as a mutual will, mirror will, joint trust, bypass trust, or separate wills?
• How many beneficiaries, in total, do you want to include in your will? Would you be willing to name backup beneficiaries for each one in case they are unable to inherit your property as planned?
• Does your family have a living trust? Would you be interested in forming one?
• Who do you want to serve as the personal representative of your estate? Who would you elect as a backup? What if none of your top choices were possible? Would you be ok with a court appointing one?
• Could you arrange for some property to be transferred outside of your will and probate? For example, would you feel comfortable leaving a home to a relative using a joint tenancy with rights of survivorship (JTWROS) deed?
• Do you have any minor children or disabled adult dependents? Who would you want to care for them if both spouses die?
• Are you 100% confident that your plans for who inherits what will not significantly change in the next few decades?

You may notice that some of these questions are tougher to answer than an estate involving a typical, non-joint will. That’s because a joint will can become irrevocable after the death of one of the testators.

After that point, the surviving testator cannot legally change the will in some instances. They must also be careful about using transfer methods that go outside of a will to change the beneficiary recipient of an account balance or receive other property; there is a chance the original beneficiary might sue them and seek to preserve their original claim.

Talk to an Albuquerque joint will lawyer to learn more about the most important factors to be aware of when estate planning. Your lawyer can suggest strategies that maximize the chance that your wishes can be carried out after your death or the death of your spouse.

How Does an Albuquerque Joint Will Work?

In its simplest form, a joint will refers to any will used to dispose of the estates of two or more individuals. While joint wills can technically be used by any adults with the capacity to make a will, they are most often used by married couples.

Married couples usually use a joint will with the intention of simplifying their estate plans. The joint will might use a straightforward inheritance arrangement, such as leaving all separate and community property to the surviving spouse when one spouse dies.

After the remaining spouse dies (or if both spouses die at once), then property can go to surviving beneficiaries.

Challenges Can Arise If a Joint Will Becomes Irrevocable After the Death of a Co-Testator

One common issue that can arise with a joint will is that testators might include a provision that makes the will irrevocable after the death of just one of the testators. At that point, all of the arrangements of the will are “locked in” and cannot be changed by any surviving party.

For example, a joint will might state that, in the event a spouse dies, the remaining spouse inherits a house, and then their oldest child may inherit the house at a later date. This arrangement may sound fine, on paper, but if the will is irrevocable after a spouse’s death, problems could arise.

Most notably, the surviving spouse does not have full ownership rights and control of the property anymore. Since the property has to go to a child someday, the surviving spouse cannot sell the home or significantly alter the property.

If the spouse needs money to fund their long-term care or even just wants to move, they must keep the house at all costs. They may not be able to take out a home equity line of credit (sometimes called a HELOC or second mortgage) or otherwise use the house as collateral for a loan.

Similarly, challenges can arise if property is willed to someone who is no longer alive or, for some reason, cannot take possession of the property. For example, if a valuable collector car was willed to a child, and the child was later paralyzed in a work accident, they would have to inherit the car even if they were unable to drive it.

They could then transfer the car to someone else, in theory, but this second transfer could result in gift taxes or sales taxes that diminish the value of the vehicle’s final proceeds.

In addition, a beneficiary who becomes disabled may be trying to qualify for Social Security Disability Insurance (SSDI) or Medicaid. Inheriting property could put them over the resource limit, creating significant complications.

Finally, a testator may simply decide that they have changed their mind since they created their joint will. For example, they may be estranged from a child beneficiary, or they may have far more grandchildren than they did when the will was created. Accordingly, they may want to make changes but be unable to if they survive their spouse and are locked into an irrevocable will.

Joint Wills in Albuquerque (And Throughout the State) Are Not Presumed to Be Irrevocable

One factor that makes joint wills less risky in Albuquerque is that the state of New Mexico does not automatically assume that a joint will is intended to be irrevocable after the death of a spouse.

Per state law (NM Stat § 45-2-514 (B)): “The execution of a joint will or of mutual wills does not create a presumption of a contract not to revoke the will or wills.”

This statutory language means that a joint will can be created and then later revoked by a testator, by default. The testators do have the option to include language in the will preventing either party from revoking the will or amending it, including after one party’s death.

Joint Wills That Dispose Completely of One Testator’s Estate Can Avoid Many Problems

As described above, joint wills can put families in awkward spots when they presuppose that certain property will go to another beneficiary after it is inherited by a surviving testator. This arrangement prevents the primary beneficiary (usually a surviving spouse) from assuming full ownership and enjoyment of the asset.

One method that can be used to avoid this situation is to ensure that the will completely disposes of a testator’s property, with no requirements for what happens to that property when the surviving testator dies. This arrangement effectively reconciles the joint will upon the death of the first testator.

Then, after all parties receive full ownership and enjoyment of their inherited assets, they have the right to sell them, transfer them, or will them to whomever they want.

Put more simply: a joint will that completely disposes of each testator’s estate may no longer be in effect once the first testator dies.

Here’s an example: Sally and Sam have two adult children. They create a joint will that says that, in the event that one spouse dies but not the other, the surviving spouse inherits all joint property and ⅓ of separate property.

If both spouses die at the same time, though, then the children split everything equally.

If Sam dies, Sally would inherit their residence, take over all jointly owned accounts, and receive ⅓ of any separate property from their deceased spouse. At this point, no child is predestined to receive the family home because the condition where both parents died at the same time was not met.

Sally can now create a new will stating who would get the family home (or how it would be split) after she dies.

This situation is much simpler compared to a joint will that was made irrevocable after the death of one spouse and that willed the family home to a specific child after a spouse’s death. Without having the property tied up to such an agreement, Sam is fully able to sell the home or modify it, such as turning it into a rental duplex.

Alternatives to Using a Joint Will in Albuquerque

Even when a joint will is written in such a way that it can be revoked by a surviving spouse, joint wills can be challenging to evaluate and process through probate. Options that families (or other closely aligned testators) may want to consider instead include:

• Mirror wills — Two wills that are identical, usually leaving 100% of property to a surviving spouse. The surviving spouse can then decide how they want to distribute this property when they die, without being tied down by an irrevocable joint will agreement.

• Separate wills — Spouses are under no obligation to align completely on estate plans, except that they have to pass community property to one another (or form an agreement that explicitly says otherwise). If each spouse is allowed to make their own separate will, they can state what they would want to happen should they be the first to die. After the first spouse dies, the surviving spouse is free to amend their will to describe how they want to distribute their estate, including everything they inherited from their deceased spouse.

• Joint trust — A joint trust can contain all community property owned by a couple. Each spouse is also able to form a sub-trust that contains their respective separate property. If they want any of this property to be reserved for a future generation, they can use an A-B trust structure that splits into a bypass trust when the first spouse passes. The bypass trust then holds the property for the benefit of children or other beneficiaries until the surviving spouse dies. Meanwhile, the surviving spouse can draw income from the growth of the trust’s assets. This structure is preferable to a joint will that cannot be revoked since the surviving spouse is allowed to create their own will and determine what happens to their separate property.

Get Help Planning for the Future of Your Family With an Albuquerque Joint Will Law Firm

At New Mexico Financial Law, our highest priority is ensuring that your wishes for the future are clearly captured and reflected in your estate plan. Whether that plan involves the use of a joint will or some other arrangement, we strive to help you understand the likely outcome of your plans and how they could affect your surviving beneficiaries.

Reach out to our Albuquerque joint will law firm to get tailored advice on how to best provide for your family and handle your unique estate. Call 505-503-1637 or contact us online to schedule a no-obligation consultation and estate plan review.