What happens when a married couple have wills that have different plans of distribution upon death?

Attorney Tom Olsen: Chrissy, you and I and the lawyers in the office, we do many, many, many, many estate plans for people, wills, trust, and so forth. A lot of our clients are married couples. The vast majority of the times are married couples have wills or trusts that have mirror images of each other as to what happens to their estate when they have both passed away.

Occasionally we get a married couple where his will is different than her will. We just always have to say, "Look, it's a winner takes all situation." If she's including her family in her will, and he's including his family in his will, and he happens to die first, it means that ultimately everything's going to go to her family. If she happens to die first, then it means that everything's going to go to his family. Some people understand it, it's unusual, but sometimes it happens that way. If they say okay to it, then of course it's okay with us.

Attorney Chris Merrill: Yes. Correct. Most importantly, though, we are able to listen to their particular family situation and we are able to help guide them with the way that their legal documents would be done, whether it's their wills or whether it's a trust. Like you're saying, sometimes that is okay and other times we can help guide them and tweak that or do things a little bit differently to accommodate their situation.

Tom: It's not unusual for people to come in and see us and say, "Tom, I don't know what I want to do with my money when I pass away." My standard response to them is I open up a Word document and I say, "Okay, start naming anybody, everybody, any person, any charity, any friend you name anybody at all you think you're including. Hey, just start naming names." I start making a list and I go, "Okay, here's a list of 10 different people or charities. Which one of these do you want to leave a dollar amount to and which one of these you want to leave a percentage to?"

We start boiling down and they'll go, "I want to leave 5,000 this charity and 5,000 this charity, and 5,000 this person." After we get the dollar amounts done, then we start talking about, "Okay, we're going to take everything else. We're going to split it up into percentages. The rest of these beneficiaries, will they be even or will they be uneven?" It's people come in sometimes unsure about it, but we know how to pin them down on it. Whenever we do wills and trust for people, we always mail them drafts. I say, "Look, this is just a draft today. We're going to mail you a draft, you're going to have an opportunity to change your mind, but we made good progress today."

Chris: Exactly. Thank you for mentioning that because I think that it's important that people understand when you have that consultation, that conversation as you were just describing, and whether that's in person or over the phone or via Zoom, that is a starting point. It's a perfect starting point because like you said, we here, maybe not other law firms, but we do drafts of everything. That means that the discussion and conversation and what we put down in the draft is a starting point. Then from there we can tweak it. We can change it.

Tom: Whether we do a will for somebody or whether we do a trust for somebody, I always say, "Look, whatever we do today, you might sign it in 30 days from now, but you can always change it down the road."

Chris: Exactly.

Tom: It's just we've got to get something in writing because I've had a client before where he left his wealth to I think a university in California somewhere, and he kept saying, "Tom, I do not want my money to go there. I know that. I know it doesn't go there." It probably took him a year before he finally was ready to sign a new will with new beneficiaries. When you're that sure that you know who you don't want it to go to, you've got to get something in writing to make sure it doesn't go to the old beneficiaries and then you can always change your mind down the road.

Chris: Correct. Yes. Great point. Thank you.

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