Having co-executors is not a good idea. Even if they get along it’s to easy for each to pass off responsibility to the other driving those who have to deal with the estate out of their minds.
Yes, much better to name a single executor, and then “If the first executor is unable or unwilling to act, I appoint …”.
Do you have a cite for that? I’ve never heard of it, and I’m one of those people who reads the entire mortgage agreement before I sign it. I’ve seen clauses that the surviving spouse becomes solely responsible for the mortgage upon the death of the other, but not that the entire remaining principal becomes immediately due.
Some cites refuting your claim:
LegalZoom | Legal Solutions Trusted By Millions, Designed for You : “Many spouses take out mortgage loans in joint names. If this is the case and your spouse dies, you are still a borrower on the mortgage and you are responsible for continuing to make the payments. However, federal law prohibits the lender from calling the entire mortgage due because one spouse has passed away. If you also held title to the home jointly in a deed with rights of survivorship, your spouse’s half of the home passed to you automatically at her death. Although you are now responsible for the entire mortgage on your own, you also own the entire house.”
ehow | ehow : “In the case of a couple having a joint mortgage, the death of one spouse will simply mean the other spouse becomes the sole mortgage-holder. As long as she can continue making the payments, the property will be unaffected. If she is no longer able to pay the mortgage, she may need to sell the property and move to a less expensive home. Another possibility would be to remortgage the property for a full term, lowering the payments.”
Meh, I’m gonna do my darnedest to spend it all ante-mortem.
Will Joke: “I, being of sound mind, spent it all while I was alive.”
Seriously,… IANAL - but if there is a chance that your will is going to be contested - get it written by a lawyer.
If you have more than 1 child, if they don’t get along really well, if one has sharing problems - get a real will. If you have a complicated estate; if there is property to be sold (so proceeds can be split) etc.; if there are priceless heirlooms or things of sentimental value to argue about - get a real will. If you have complicated offspring - i.e. his, hers, and maybe also ours - then get a real will.
Nothing brings out the old sibling rivalry like an inheritance fight. Instead of fighting over Tonka Trunks at age 5, thy will exhaust the estate with legal costs out of spite just so their brother gets nothing. They will contest whether the house was really sold for the best amount, or whether it should have been sold to X’s friend without being put on the market, or any of a dozen issues.
There are tricky wordings relevant to lawyers - do you want 50% to got brother Fred and his kids, 50% to Sally and her kids? Or Fred and his son each get the same amount as each of Sally’s 3 daughters and Sally - 1/6 each? (per stirpes vs. per capita?) If your will is ambiguous it could mean thousand or tens of thousands to whoever contests it. What if new grandkids or nieces and nephews are born after the will was written?
Unless you are passing your house free and clear to one person, life can be interesting. Some places, you can’t boot the widow out of the house; at worst she has a life lease. Best case, the law automatically gives her the house. This is a fun scenario where one spouse’s children (from previous marriage) can be cut out of the inheritance depending on who dies first.
In some locales, a marriage can invalidate any will written before the marriage, so be careful about maintaining the will. Wills might also contain a clause like “provided my spouse survives me by 7 days” or similar legal wording, to avoid the argument over who died first in an accident to see whose will takes precendence.
Plus, as mentioned above, some jurisdictions require all wills be probated in court; certainly anyone being executor to an “interesting” or complicated will (or one where there will be real questions) will need legal help - the executor does not need to be a lawyer or accountant, but should know who to ask about the process, or if there are issues.
Some palces, holographic - handwritten - wills are sufficient. In others, all wills need witnesses to the signing; I recall something about the witnesses should not be beneficiaries. then there’s the “sound mind” issue - be sure you make your wishes known before someone can argue undue influence or incompetence.
I’m in Virginia which has an easy probate process. In a lot of cases, a person can let it go intestate if the heirs at law and the proportion of the estate are the same.
In my case, I have a simple will since all of my assets are jointly titled. The only reason I have a will is if anything ever happens to my wife and I at the same time, we have something indicating who we want to get custody of our son.
In my experience, the biggest messes are when lay people try to get too fancy. I saw one where the decedent drafted a testamentary trust leaving income to his wife for her lifetime with the remaining proceeds to go to their grandkids. It became a problem because he failed to nominate anyone to be the trustee of that trust and the family couldn’t agree. They had to file an action to get someone appointed.
Another messy one was a husband and wife did a joint will. After one spouse died, the survivor wanted to change their will to leave more to the child who was taking care of them. As a matter of law, the survivor couldn’t change the disposition of anything listed in the will. The problem for the other child was that the will didn’t cover the house and a few other assets which were the largest part of the estate. This all eventually went to court.
See? Technical details…
I’ve never heard of a “joint will”. But, there’s a limit to what you can do from beyond the grave. If you leave something to Sally, but when she dies Fred gets it, etc. - you are getting all tied up in life-leases vs. outright inheritance and all sorts of interesting stuff.
How would a joint will work, unless what you mean is the first spoue left their share to the one child, with life lease for the other spouse? (Isn’t a spouse entitled to inherit full title generally, for the family dwelling? They own it 50-50 in most states.) Once somebody inherits something, even if it’s a share of something, there’s no take-backs.
(There’s also the “rule of perpetuities” which IIRC is a key point of the Clooney film “The Descendants”.
Withut a will or if the will is tossed, you have a set allocation - X% (50%?) for spouse, remainder equally to all children, etc. OTOH, in most jurisdictions, IIRC, you can disinherit someone provided you specifically mention the fact. Otherwise, they can argue you “forgot” to mention them, and so the will is invalid.
Yes, if the will is anything beyond “I leave it all to Sally and Jake, to be divided equally” then get professional help. If Sally and Jake are likely to argue, get professional help. there are significant technical details in estate law
I enjoyed the Descendants, although I wish they could have used some Hawai’in actors! Possibly the only time the rule against perpetuites has been in a film other than perhaps in adaptations of Bleak House.
There are so many potential traps to avoid that I really think it’s a task best left to the professionals. For example, here in New Zealand, families can contest wills under the Family Protection Act and claim a share of the estate if they’re left out. If you don’t know that and write your own will excluding the difficult child who you’ve never got along with you’ve potentially condemned your estate to be decimated by legal costs.
Actually a quick search on wikipedia shows that the rule of perpetuites is also a plot point in 1981s Bodyheat as well. Hmmm, maybe a law review article on estates issues in film might be called for.
Joint wills are fairly rare, and may not be allowed under state law. A joint will is a will that was executed by two people, usually husband and wife, that disposes of their property. In effect, it is treated as a contract between the two parties, and under most state’s law becomes irrevocable upon the death of one of the parties. The beneficiaries of the joint will have standing to sue as third party beneficiaries of the contract.
Here is the wiki link.
Interesting, thanks, but looks like more (legal) trouble than it’s worth. however, in the case mentioned up-thread, it did what it was intended to do. It kept the distribution the way the first spouse wanted, no matter what influence (legit or not) the other spouse received.
I had several discussions with a friend who was trying to draw up wills for him and his new wife. they both had adult children from previous marriages. His concern was that he was bringing much of the savings to the marriage (she brought mostly debt) . They built a retirement home with his savings. he was concerned that if he died first, her children would eventually inherit it absent any wills.
Basically, all I could find was that unless he wanted to get into weird trusts and all that - hardly worth it for a typical house - it was all based on trust. They both drew up wills that said if the other went first, all the kids got an equal share. All written by lawyers, after all he was not stupid.
However, nothing stopped her from changing the will after he died; plus, it would be entirely possible that she would sell the house, he did not want to tie her hands that way. There’s also the chance all that money would go to nursing home care; or the possibility she remarried and his legacy would go to some strange man and his heirs, since generally the family home usually goes to the surviving spouse, considering joint marriage property laws.
He would just have to trust her which he did, but then, that’s what marriage is all about anyway.
Besides, when ma and pa nowadays don’t usully kick off until their late 70’s or 80’s, the kids probably don’t see any estate money until they are about ready to retire themselves. You can’t plan your life hoping for your elders to die.
In the case I mentioned, the joint will didn’t gift the house at all, nor did it gift certain accounts. So the surviving spouse ultimately did an end run around the thing anyhow.
I mentioned joint wills because they aren’t too favored and quite a few states don’t allow them, or require very specific things in them.
Yeah, Im trying to think of circumstances other than a large holding like a family farm or expensive house that would require a joint will - possibly in circumstances like I mention, where his heirs are not her heirs but you dont want to tie the spouse`s hands during widow(er)hood.
Has common law or family law caught up to the blended family situation yet or does it still really matter who goes first…
A friend who was an accountant and got to see many interesting situations first hand, related the story of a couple who married late in life. When she died, her adult children showed up at the house and tried to ‘claim’ their mother`s possessions, basically strip the house. The husband had to charge them with trespassing and theft to get them to back off.