A mutual will is a will made by two people together for the benefit of each other. A mutual will secures the rights of the other testator in the future distribution of the estate. Mutual wills can also be used to obtain tax advantages in certain cases.
Usually, the authors of a mutual will are married or unmarried couples. Of course, relatives or friends, for example, can also make a mutual will together.
How is a mutual will made?
Mutual wills are made in the same way as ordinary wills. The will is made in writing, both testators must be present at the same time when the will is signed, and both parties sign the will at the same time. In addition, two unobstructed witnesses must be present at the same time and sign the will to certify that it is true. All the instructions on the revocation, interpretation, settlement and execution of wills also apply to mutual wills.
A mutual will is always made:
- by writing to
- dated the date of signature
- signed by both parties
- in the presence of two unobstructed witnesses
Testament of rights or testament of ownership?
Mutual wills can be made to each other either as a will of tenure or as a will of ownership. Mutual wills are primarily intended to protect the testators.
In a mutual testament of ownership, the spouses decide on the ownership of their property in the distribution of the estate. A full title will gives the testator unlimited control over the property subject to the will. The testator is then entitled to dispose of and use the property as he wishes and is considered the owner of the property. When the testator himself dies, the property is passed on to his heirs at law or to those designated by his will.
You can include a subsidiarity clause in your will. A subordination order is a provision that first assigns property to the widow. When the widow dies, the testamentary property passes to the secondary beneficiaries, i.e. the persons designated in the will. The primary beneficiary of the will has the right to dispose of the property during his or her lifetime, but cannot dispose of this property by will and this property does not pass to his or her heirs.
The advantage of a limited will is that it allows the testator to ensure that the property remains with his or her designated heirs even after the death of the widow or widower. However, the surviving spouse retains the right to use the property during his or her lifetime, thus ensuring his or her livelihood.
A testament of administration allows the spouses to decide on the administration of the property of the deceased. This usually means that the ownership of the property of the first spouse to die passes directly to the children, but the surviving spouse has the right to use or control the property for the rest of his or her life. The person who receives ownership pays the inheritance taxes. The right of possession is not free of inheritance tax.
Mutual wills and succession
Breast heirs are children and grandchildren. Breast heirs is always entitled to a share of the law. Legal section is half of the inheritance.
A joint will can therefore be used primarily to safeguard the status of the spouses and secondarily to determine how the inheritance will be divided after the death of the spouses.
Mutual wills cannot infringe the right of the heirs at law to their legal share of the inheritance. If a mutual will is made for the benefit of the widow, the widower, as legatee, may ask the heirs at law not to claim their share before the widower's death. However, such a request is not legally binding, but the heirs at law have the right to claim their share of the estate in the distribution of the estate.
It is worth mentioning in the will that the widow can pay the heirs the legal share in cash and the heir cannot claim it, for example, as a share of the property belonging to the deceased.
Inheritance tax for breast heirs
Inheritance tax rate rises progressively, so the more you inherit, the higher the percentage of your inheritance you have to pay tax on.
Heirs by blood are in a more favourable tax bracket than more distant relatives or other beneficiaries of property by will.
How do you protect the position of a widow or widower with a mutual will?
The heirs have the right to claim a share of the inheritance. A will can limit this claim. In principle, the heir is always entitled to receive at least his or her share of his or her parents' estate. The legal share is half of the inheritance to which he or she is entitled.
Many parents would like the estate to remain undivided and administered by the widow or widower even during her lifetime. It can and should be included in a joint will to ensure that the heirs-in-law do not claim their share of the estate during the widow's lifetime. Many people also know that this is only a wish and that the provision as such is not legally binding on the heirs. In many cases, testators rely on their own children and on their children to respect the wishes expressed in their wills. However, the heir may be backed by his or her spouse, who will seek to influence his or her spouse's decision and persuade him or her to claim his or her legal share immediately.
The possibilities of a mutual will
If one of the heirs-in-law claims their share, this can cause considerable inconvenience for the widow or other heirs-in-law. The situation is ”unfair”. In fact, the claimant who has made the claim is entitled to more than the others who have respected the wishes of the deceased. He will then receive his share of the estate immediately, his share of the inheritance later, and will eventually inherit the widow as well. ”My recommendation is to try to prevent such behaviour” Mutual wills can prevent such behaviour. The best way to do this is to give the claimant a smaller share even after the death of the widow. This prevents a situation where the claimant would receive more than the heirs who have respected the wishes of the deceased and not claimed the legal share.
A sample sentence from the Mutual Testament
Our wish is that no legal deposit would be required. However, if one of our heirs-in-law claims and receives his share of the estate after the deceased, his right to receive the estate after the widow is reduced so that even then he receives only his share of the estate.
It is also worth mentioning in the mutual will that the surviving spouse can always pay the legal portion in cash. You don't need to be an expert in this field, you can turn to us.
Related articles:
Reduce inheritance tax with a will
What to do if the witnesses to the will were incompetent?
Last will and testament
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