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Posted 01/31/2022 in Family Law by Brian Winter

3 Simple Principles for Married Couples Making Last Wills

Now that you’re married, the topic of a Last Will and Testament as the first part of your estate plan has probably come up for discussion more than once. Are you both ready to take the plunge? Here are a few guiding principles for married couples interested in making their first Last Wills.  


1. Are you too young to make a legal Will? All states have laws governing the making of Last Wills (including form Wills). One general requirement has to do with the age of the testator spouse. To create a valid Will, the testator must be an adult or an emancipated minor. An example of an emancipated minor would be someone who is married, but not yet 18 years of age (the age of majority is older in some states).


2. Is a Joint Will a good idea? To clarify, the Joint Will is one testamentary instrument for two people, the husband and the wife. Some look at a shared Will as cost savings because there’s only one instrument, not two. For most married couples, however, a Joint Will causes more problems than it cures. A big concern is tying assets up during the interim between the first death and the second spouse’s death. (Especially in a winter-spring marriage wherein the older spouse dies first!) If circumstances substantially change after the first death, the surviving spouse may have many legitimate reasons for desiring a new or revised will. But with a Joint Will, the first testator isn’t around anymore to approve amendments to “their Will.” Although the widow or widower could ask the court to intercede, that’s a lot of headache, heartache, and expense when the results may still be less than optimum.  


3. How do you know your Last Will is enforceable? You don’t want your loved ones fighting over the validity and enforceability of your Will! In addition to the testator’s age (called “legal capacity”), there are other formalities which must be followed to create a valid Will. The testator must have the requisite “testamentary capacity” and be of sound mind regardless of his or her age. Written Wills must be attested to and witnessed properly. Although similar formalities exist among various jurisdictions, discuss your state’s specific requirements with an estate planning attorney so your best-laid plans aren’t vulnerable to a Will contest.   

The Last Will and Testament is an essential component of every individual’s estate plan. If you and your spouse are concerned about what will happen if there’s a terrible accident or terminal illness. If you’re expecting your first child and need to arrange for guardianship should the worst come to pass. Then arrange to meet with a reputable estate planning attorney who can answer all of your questions and address every “What if...” 


Brian Winter is a family law and estate planning attorney in Phoenix, Arizona. Mr. Winter is a partner with Stewart Law Group with offices throughout Arizona. The firm has helped many clients navigate the legal complexities of estate planning, wills, probate, divorce, child custody, spousal support, property division, parental visitation, and child relocation disputes.


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