Some couples approach their estate planning lawyer seeking advice on creating a joint will. Generally, the estates lawyer will frown upon such a suggestion because in practice, joint wills are fraught with problems. A joint will can be created by a married couple and is a single will. A joint will is signed by the couple and in it contain provisions leaving all of their assets to each other. The reason why joint wills are not more commonly used as an instrument to bequeath gifts upon death is that usually, even in longtime marriages, most married couples do not have identical wishes regarding their assets.
Joint tenancy vs. tenancy in common
Married couples generally own real estate assets as joint tenants. A lesser form of home ownership is a tenancy in common. The key difference between the two is their effect on the distribution of assets at the death of one of the partners. Joint tenancies contain a right to survivorship. This means that at a partner’s death, their share of any joint assets become the sole property of the surviving partner by operation of law and outside any asset distribution of a will for example. In a will, assets held as a tenancy in common are distributed according to the terms of each person’s will. Tenancy in common may be a better ownership form where couples wish to gift or bequeath their assets or shares in an asset in different ways. This may be an attractive form of ownership for couples with children from a prior marriage particularly if the new spouse has no children of his or her own.