Mutual Will

What Is a Mutual Will?

Mutual will is a type of will, usually executed by a married or committed couple, that is mutually binding. After one party dies, the remaining party is bound by the terms of the mutual will. This means that the remaining party can only alter the mutual will if they follow the agreements set forth in the will.

Key Takeaways

  • A mutual will is one that covers a married or legally bound couple rather than a single individual.
  • In a mutual will, the terms remain binding for the remaining party after the first partner dies.
  • The purpose of this type of will is often to ensure that assets pass to children rather than a new spouse if the living partner remarries.

How Mutual Wills Work

A will is a legal document that sets forth one's wishes regarding the distribution of assets, property, and obligations as well as the care of any minor children or other dependent. If you die without a will, those wishes may not be followed and will instead pass through probate court. Further, heirs and unnamed beneficiaries may be forced to spend additional time, money, and emotional energy to settle the estate's affairs after you're gone.

A mutual will’s purpose is to ensure that property passes to the deceased’s children rather than to a new spouse if a living spouse remarries after the death of the other. Because of state differences in contract law, a mutual will should be established with the help of a legal professional. Though the terms sound similar, a mutual will should not be confused with a joint will.

Steps to Creating a Mutual Will

  • Decide the property to include. List significant assets then decide which items should or must be left by other methods outside of the will. If you're married, each spouse may make a separate will or a mutual will. An individual can leave only the share of assets they own jointly with their spouse.
  • Decide who will inherit property. After making initial choices, choose alternate or contingent beneficiaries in case the first choices don't survive the testator.
  • Choose an executor to handle the estate. Every will must name an executor to carry out the terms of the will. It is best to verify with the executor in advance that they are willing to serve.
  • Choose a guardian for any children. If children are minors, decide who would raise them in case the other parent cannot.
  • Choose someone to manage children's property. If leaving property to children or young adults, choose an adult to manage whatever they inherit. To give that person authority over the child's inheritance, make them a property guardian, a property custodian, or a trustee.
  • Make the will. Wills can be made by engaging an attorney or by using one of many private and public online services, many of which are available free of charge.
  • Sign the will in front of witnesses. The completed will must be signed in the presence of at least two witnesses. If using a self-proving affidavit to make things simpler when the will goes through probate court, the signature must be notarized as well.
  • Store the will safely. Advise the executor where the will is located and how to get access to it when the time comes.
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