Santa Fe Joint Will Lawyer

A joint will is a single will that handles the estates of two people. These wills may be used by married couples or others with closely tied finances. However, they often impose serious limitations and drawbacks. As a result, they are not commonly recommended for most estate planning situations, especially when alternatives, like a joint trust or A/B trust, exist.

If you are interested in learning more, you can refer to an experienced joint will lawyer in Santa Fe. They can provide you with information and support, including help with drafting and executing the will you ultimately create.

When you meet with a member of the team at New Mexico Financial & Estate Planning Attorneys, we can help you understand the strengths, limitations, and possible drawbacks of forming a joint will. You can also learn about the common alternatives to these specialized types of wills, helping you make the right decision for your unique estate.

Call us at (505) 503-1637 or contact us online to schedule a confidential, no-obligation appointment and discuss your best options for creating a will in Santa Fe.

Questions You Can Answer With a Santa Fe Joint Will Attorney

If you are a married couple or someone with finances that are closely tied to another individual, a joint will may sound like a good option. By meeting with a Santa Fe joint will attorney, you can review all of the most important details and information to consider whether one could be right for you. You can then decide on the structure of your estate plan and whether to incorporate elements like a joint will.

During your appointment, the lawyer you meet with may ask questions like the following:

• Are you married to the person you want to create a joint will with? If so, for how long?
• Do either of you currently have any children? How many are from this marriage (versus a previous marriage)?
• Do you plan on having more children?
• What are your intended arrangements for inheritances? How might these change over time, such as when your children marry and have children of their own?
• Do you know what estate distribution (i.e., inheritance) arrangements you would want if you happened to get divorced?
• What parts of your estate do you expect to stay consistent for the rest of your life, as opposed to changing over time? For example, do you plan on moving out of your current residence at any point?
• Do you and/or the person you are considering creating a joint will with currently have a trust? Would you be interested in creating one?
• Do both you and your spouse (or other joint will co-creator) currently work? What is your estimated age of retirement?
• Do either of you have substantial assets that would be considered separate property? Examples include property acquired before the marriage, inheritances or gifts to just one of you, and property that has been declared as separate through a prenuptial agreement (or similar contractual arrangement).
• Are there specific risks you want to prepare for or scenarios you want to avoid by making a joint will? For example, are you worried about reserving specific assets for your children?
• What other advantages did you hope to gain by creating a joint will, as opposed to having two separate wills?

While some of these questions may seem pointed, the truth is that joint wills only provide benefits for specific situations. By considering some of the topics above — along with the further information provided below — you can anticipate whether a joint will might be the best solution for achieving your estate plan goals.

What Is a Joint Will? How Do They Typically Work in Santa Fe?

A joint will is similar to a typical will in that it accomplishes three main things:

• Lists bequests (transfers of property) to heirs
• Names a personal representative for the estate of the testator (the person making their will)
• Names a guardian for minor children or adult dependents

For a will to be valid in New Mexico, according to state law (NM Stat § 45-2-502), the will must:

• Be in writing
• Be signed by the testator (or signed at their direction and in their presence)
• Have two witnesses to the testator’s signing, who must then sign the will in front of the testator and each other

Having the will notarized is optional, but also recommended.

What Makes a Joint Will Different From a Typical Will?

With a joint will, there are two testators. They both use a single will to completely dispose of their estate (meaning distribute it to their heirs). They must both sign the will and have it witnessed.

As a common arrangement, joint wills often leave all property to the surviving testator after the first one passes. After the survivor passes, the remainder of the estate goes to its final beneficiaries.

Since joint wills are often used by couples, the final beneficiaries are usually their children. Each spouse may also grant immediate gifts of property to a select few beneficiaries after their death, while leaving the remainder of the estate to the surviving spouse.

Non-Revocation Clause

Joint wills may contain a type of non-revocation clause, which states that the will may not be altered or revoked after the death of the first testator. The surviving testator is then “locked in” to the terms of the will, according to its last properly executed revision.

Note that state law (NM Stat § 45-2-514) does not automatically presume that a joint will or mutual will cannot be revoked.

Since these wills are co-signed by two individuals, they also often contain language stating that they cannot be revoked or revised without mutual consent from both parties.

What Happens If I Get Divorced From Someone Who I Created a Joint Will With?

Divorces automatically revoke all bequests that would go to the surviving spouse, unless the will specifically states otherwise (NM Stat § 45-2-802). In most cases, this would mean that the joint will becomes ineffective or nearly impossible to use. Both parties would then need to create a new will.

Difference Between a Joint Will, Mutual Will, and Mirror Will

A mutual will and a mirror will are two separate wills that make identical or nearly identical arrangements.

With a mutual will, the two parties involved create a separate document (called a codicil) that explains the relationship between the two wills. Often, this codicil states that the will of the surviving testator cannot be revoked after the other party’s death. The codicil is then witnessed and executed in the same manner as a will.

A mirror will does not contain this codicil, allowing each party to modify their will at any time they want.

Why Make a Joint Will?

The most common reason that couples use a joint will is to preserve assets after a spouse’s death. This arrangement can prevent the surviving spouse from spending assets themself or transferring them to someone other than the originally intended final heirs.

With a normal will, the surviving spouse is free to use their inheritance however they wish. They may decide to honor the memory and wishes of the deceased spouse and preserve these assets for the final beneficiaries. They may also decide to sell the assets — often out of necessity because of a financial hardship.

In some cases, the assets inherited by the surviving spouse may be promised to other heirs. This is especially common if the surviving spouse remarries and has more children with their new spouse.

Joint wills, therefore, almost always represent a desire to “set things in stone,” such that they cannot be altered without both parties’ consent.

Potential Disadvantages to a Joint Will

Many of the biggest potential disadvantages of joint wills arise when there is a requirement that testators must mutually agree to any revisions or revocations. These effectively waive each party’s right to enjoy or transfer their property as they see fit. Suddenly, they need the consent of their spouse to modify their own will. They are also under an obligation to avoid making decisions that could jeopardize the execution of the will as intended.

If, for example, a spouse wants to sell some heirloom jewelry bequeathed in the joint will, they now need the other spouse’s permission. This may be true even if the property was considered separate, rather than community property.

There are ways around this particular example, such as by allowing each testator to bequeath separate property using a supplementary codicil. But it still illustrates how things can get complicated, potentially even enabling one testator to exert control over the other’s finances and spending.

Joint Wills That Cannot Be Revoked After a Death Pose More Problems

Joint wills that include a non-revocation clause can cause significant issues, not just for the surviving testator’s unencumbered use of property, but also because of the unpredictable nature of life.

One of the biggest issues to be aware of is that an original intended “final” beneficiary of estate property may not survive. In these cases, their share can go to a successor beneficiary. But what if none of the named beneficiaries are alive? Worse, what if the relationship between the surviving testator and this successor beneficiary is strained?

Consider, too, that as time moves on, an arrangement that seemed appropriate at the time of the will’s creation may no longer make sense.

For example, imagine a joint will that leaves a residence to an adult child. This child may no longer want the home by the time the surviving testator passes. They may even wish they could encourage their parent to sell the home and move closer, but the contract created by the will may disallow this. By violating that contract, such as by selling the home, it could be possible that the whole will is declared invalid by the time probate comes around.

Also, what if the home burned down, was condemned, or significantly decreased in value because of an issue like a sinking foundation? The surviving spouse, as property owner, may be entitled to an insurance settlement for issues like these, but should that insurance payout be pledged to the final beneficiary?

Issues can also arise when a bequest was intended to go to a charity or other organization that may no longer exist.

A joint will’s inflexibility can create problems like these, with minimal options for resolution. Because of these possible challenges, a wills lawyer in Santa Fe may be inclined to steer clients towards more flexible options that can help achieve many of the same goals.

Alternatives to a Joint Will

Some alternatives that may be recommended include:

• Joint tenancy with rights of survivorship (JTWROS) property deeds — These titles can include more than two holders. Ownership interest cannot be transferred without the other party’s consent. That restriction means that a child or other heir can be listed, allowing them to inherit the property after the first two owners have passed. These arrangements may work for certain types of family assets.
• Joint trust — A joint trust can only distribute property to its beneficiaries. However, a co-grantor may enjoy the use of an asset until this distribution occurs, depending on the rules of the trust. Trustees can also be allowed to modify the trust if all the beneficiaries consent. This arrangement makes it so the beneficiaries, not the grantors, are the final arbiters of asset distribution.
• A/B Trust — This is a special type of joint trust that contains two sub-trusts, each holding the property of a co-grantor (e.g., one for each spouse). Upon the death of the first grantor, their share is transferred into an irrevocable trust. The surviving grantor can obtain passive income from this trust’s investments. Their original share of the joint trust can also pass solely to them. This arrangement preserves some assets while still giving the surviving spouse access to others. These types of trusts are commonly used to avoid situations where a remarriage or blended family leads to a surviving spouse promising away their inherited assets to someone other than the couple’s children.
• Mirror wills — Mirror wills are voluntary, but they begin from the same mutually agreed-upon structure. Each spouse is free to modify their will however they wish, including after the other spouse passes.

Refer to a Santa Fe estate planning lawyer to fully understand your available options, which may include alternatives not listed here.

Our Experienced Attorneys Can Help You Decide Whether to Use a Joint Will

Joint wills may work well for some, but not all, estates. It’s important to first consider all of the potential drawbacks — as well as the advantages that might be offered by alternatives — before coming to a final decision.

New Mexico Financial & Estate Planning Attorneys can help you decide on the arrangements that make the most sense for your family, your finances, and your unique situation. Find out how to form the best strategies, personalized to you, when you call us at (505) 503-1637 or contact us online to schedule a no-obligation consultation.