Can a Husband and Wife Have One Will?

In this video, Attorney Thomas B. Burton answers the following question:

"Can a Husband and Wife Have One Will?"

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Hello, I'm Attorney Thomas Burton. I'm an estate planning and asset protection attorney here in Wisconsin. And today's question is the following:

“Can a husband and wife have one will?”

Excellent question. I see this come up a lot. The short answer is, no, you cannot share one will because you each have an interest, even if you live in a community property state like Wisconsin, where you've heard about marital property, you each have an interest in the estate and many people have individual property, meaning not all of their property is marital property, but even if all your property is marital property, for a long married couple, let's say, they've been married a long time and they don't have any individual property. You still have an undivided one-half interest in your share of the marital property. So you need to create your own will to say what happens to it. In addition, sometimes, spouses die simultaneously, but often one dies before the other, so we need to put provisions in each will, ‘what happens when one spouse dies first?’

Now, to touch on your question, I understand that often times you want to do similar planning and that's okay, and if you work with my office, we do this all the time for married couples and we have your wills mirroring each other, what we call similar provision, but then their design that whoever passes first, the other one mirrors the first person's will, so that the assets eventually get to their intended beneficiaries, which is often the children.

However, if you do a trust plan, you can share one trust. Two people can make a joint trust and put all their assets into the trust and it's a common planning in a great way, to go about it.

So if you're interested in avoiding the time, expense and delay of probate, I would look into putting a trust plan together and especially if you're married couple, you can get a two-for-one because you both can use the same trust and because it's a little longer, more complex document, we can build in lots of flexibility for what happens, if one spouse dies before the other. If you're interested in learning more about whether a will or trust is right for your estate, you can check out my free one-page guide that I have created, it's a will versus trust decision-making guide that walks you through the steps to decide what type is right for you and it really depends on your mix of assets and your goals.

So check out that guide if you want more info, I will put a link in the video below. And that'll help you with your own estate planning, but in terms of ‘can a husband and wife have one will’, the short answer is, no, I recommend you both have a will but you can work with one attorney to create two wills that mirror each other, mirror provisions.

So great question and thank you for asking.

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