Can I Have More than One Will?

Some situations call for multiple wills; some don't. Learn how to distinguish between them and how to carefully navigate this complex process.

Can I Have More than One Will?

Most people know to use a will to pass their property on to their loved ones after death. Having a will protects your loved ones, so you may think that having multiple wills can provide clearer instructions and greater protections for them when you pass. However, having more than one will can create some problems for you that you didn’t expect.

Let’s take a look at some reasons why you may want to have multiple wills and then discuss how they may affect your estate plan.

Reasons for Multiple Wills

There are several reasons why you might want to have multiple wills. Below are some of the common reasons you might be considering multiple wills.

Deal with Property in Different Locations

A will deals with the property that is in the state where it is written. It names a personal representative who is responsible for carrying out the instructions in the will. At the time of your passing, the personal representative opens a probate case in the state and county where you resided. Your personal representative might also have to open a separate probate case in the state where you have other property. This is known as ancillary probate, which is supplemental to the main probate case. This is because of a legal concept known as jurisdiction. The court must have the authority to deal with the issues in front of it. A probate court can only make orders regarding property within its own borders. The will would have to be probated in the other state for that court to make orders about the property located there. Some people may make a different will for each state or country where they have property so that there is a separate will to address property that is just within that specific state or country.

Tax Purposes

You may have multiple wills because some states or countries provide better tax treatment than others. However, if your estate plan is not carefully structured, property that you own in another country may be subject to tax in the United States and the foreign country. Some countries charge a higher tax rate to pass property to someone who lives in a different country. You may try to avoid higher tax rates by making a separate will with more favorable tax treatment.

Supplement a Will

After you make your will, you may want to add new instructions, so you may want to use a second will to supplement a previous one you wrote.

Risks of Multiple Wills

If you make more than one will at a time, you can put your entire estate plan in jeopardy if you’re not careful. Some risks of having more than one will include:

  • Confusion – If you have more than one will, your loved ones may be confused about your instructions. It may not be clear whether a will has been revoked (cancelled or set aside) in favor of a new will. When reading the wills together, there may be provisions that contradict each other, creating the possibility of your loved ones arguing about which will’s terms should apply. Also, if you have named different personal representatives in each will, they may be confused about their respective duties and responsibilities.
  • Multiple wills submitted to probate court – A probate case is usually started when your personal representative provides your original will to the court. If you have multiple wills, your personal representative or loved ones may submit more than one will to probate court. This can cause the court to have a special hearing to determine which will is valid, adding more delay, expense and conflict that could have easily been avoided.
  • You accidentally revoke a will - While you may be trying to supplement a will or address property in another area, you may actually wind up revoking it. This can make the most recent will the only valid will so that the probate court disregards everything from your former wills.

Alternatives to Multiple Wills

There are ways that you can likely accomplish your estate planning goals without having to resort to making multiple wills. Some options include:

Make an International Will

If you own property in multiple countries, you might consider an international will, which is a will that is considered valid in countries that signed the Uniform International Wills Act. According to the Act, some of the requirements of a valid international will include:

  • It disposes of only one person’s property
  • It’s in writing
  • The will is signed in front of two witnesses and an attorney
  • All signatures are at the end of the will
  • Each page of the will is numbered and signed
  • A certificate is attached to the will that says that the requirements for drafting and executing the will were satisfied

Create a Trust

A trust can address property that is in other areas. Having a trust can also help you avoid the expensive and time-consuming probate process. A trust is a private document, so it also helps protect your privacy. It’s also easy to make changes to a trust, unlike a will that you have to revoke or follow special rules to change. Try out Nolo’s simple Online Living Trust to create clear instructions for your loved ones.

Own Property as Joint Tenants

If you own property as joint tenants with the right of survivorship, this property passes outside of the probate process. When you pass away, the other owner may just have to provide proof of your death to have the property transferred to him or her. This type of ownership can help eliminate the need for ancillary probate.

Explore Your Legal Options

If you want to have multiple wills drafted by an attorney, your attorneys should be aware of the other will and work together to ensure that the two documents can work together. You can talk to an attorney about ways to avoid probate and the need for multiple wills. If you prefer to make your own will, you can use Quicken WillMaker Plus.

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