Mirror Wills for Couples

The name causes confusion. Mirror wills are not one joint document. There is no such thing as a joint will in normal use in England and Wales. You each sign your own will, and each will stands on its own. They are called mirror wills because the terms reflect each other: where your will names your partner, theirs names you.

A typical pair says:

• I appoint my partner as executor, with a back-up executor if they cannot act.
• I leave everything to my partner if they survive me.
• If they do not survive me, everything goes to our children equally, or to the people we have chosen.
• If our children are under 18, these people are their guardians.

Because the two wills are drafted together, our will writing solicitors can make sure they fit, so that whichever of you dies first, and even if you die together, your estate ends up where you both meant it to.

Mirror wills work best when you trust each other completely, your children are children of you both, and you are happy for the survivor to have full control of everything. They are less suitable where there is a reason to fix where money ends up after the second death.

This is the point every couple should hear before signing. Mirror wills are not a contract. Each of you is free to change your own will at any time, and after the first death the survivor owns everything outright and can rewrite their will however they like.

In most families that is fine, and it is exactly what you want: the survivor needs flexibility for the next 20 or 30 years. But it means a mirror will cannot guarantee that your share reaches your children. Three ways that happens:

• The survivor remarries. Marriage automatically cancels an existing will unless it was made in expectation of that marriage. If the survivor marries again and does not make a new will, the intestacy rules can leave most of the estate to the new spouse.
• The survivor makes a new will. A new partner, a falling-out with one child, or pressure from someone close can all lead to a new will that leaves your children less.
• Care fees. If the survivor needs residential care, everything they own, including the half of the home that was yours, can be assessed and used to pay for it.

A worked example. Sarah and David own their home in Wokingham jointly and have mirror wills leaving everything to each other, then to their two daughters. David dies. Sarah inherits his half of the house. Six years later she marries Mark and does not make a new will. Her old will is cancelled by the marriage. When Sarah dies, Mark as her husband takes the first £322,000 and her personal belongings, plus half of the rest. The daughters receive less than either parent intended.

If that risk matters to you, the usual answer is a will with a life interest trust. Your share of the home goes into a trust when you die. The survivor can live there for life, but cannot give that share away, and it passes to your children when the survivor dies.

Some couples ask for mutual wills, which are mirror wills with an added agreement that neither of you will change your will after the first death. The agreement is legally binding, which sounds like the answer to the weakness above, but it is rarely the best tool:

• The survivor is locked in for life, even if circumstances change completely.
• The agreement is enforced by the courts after the survivor's death, which usually means litigation between the survivor's new family and your children.
• It is hard to prove what was agreed unless the wording is very precise.

A life interest trust gives the same protection with far less risk of a court case, so it is what we normally suggest instead.

Mirror wills only pass what your will controls. If you own your home as joint tenants, your share passes automatically to the survivor, whatever your will says. To leave your share into a trust, or to anyone other than your partner, you need to own as tenants in common.

Changing from joint tenants to tenants in common is called severance. It is a short notice and a form to the Land Registry, and we can do it at the same time as your wills. We check your title at the start so there are no surprises.

Executors

Your executors deal with your estate after you die. Most couples appoint each other, then one or two adult children, relatives or friends as back-ups. You can also appoint a solicitor as a professional executor if there is no one suitable or the estate is complicated.

Guardians for your children

If you have children under 18, this is often the most important part of your wills. A guardian named in a will has parental responsibility if both parents have died. Without one, the court decides. You can name more than one guardian, and a back-up if your first choice cannot act. You can also leave a letter of wishes explaining how you want your children brought up, for example their schooling, faith or keeping them near grandparents.

Gifts and the residue

You can include specific gifts, such as jewellery, a sum of money to a godchild, or a gift to charity, before the rest of the estate (the residue) passes to your partner and then your children. Gifts to charity are free of inheritance tax.

If you die together

Couples often ask what happens if they die at the same time, for example in a car accident. The law has a default rule: where it is not clear who died first, the younger person is treated as surviving the elder. That can send everything through the younger partner's estate, which is rarely what you intended.

We deal with this by adding a survivorship clause. Each of you only inherits from the other if you survive by a set period, usually 28 days. If you do not, your estate goes straight to the children or your chosen beneficiaries, which avoids the estate passing through two sets of probate.

For married couples and civil partners, mirror wills work well with inheritance tax:

• No tax on the first death. Everything left to a spouse or civil partner is exempt.
• The unused allowance passes on. The nil rate band (£325,000) and the residence nil rate band (£175,000) the first spouse does not use transfer to the survivor. A couple leaving their home to their children can pass up to £1 million free of inheritance tax.
• Leave the home to direct descendants. The residence nil rate band only applies when the home goes to children, grandchildren, or their spouses. Stepchildren and adopted children count.

Unmarried couples do not get the spouse exemption. Anything one of you leaves the other above £325,000 can be taxed at 40% on the first death. If that applies to you, it is worth talking to us about estate planning before you sign.

The survivor, usually as executor, deals with the estate. Where everything passes to a spouse and the home was owned jointly, there may be little to do. Where there is a trust, a house in sole names, or a larger estate, a grant of probate will usually be needed. Our probate solicitors can handle that for you, and it is also the right moment for the survivor to review their own will.

Check your wills every five years, and at once if:

• you marry or form a civil partnership (this cancels existing wills)
• you separate or divorce (a divorce treats your ex as if they had died, but separation alone changes nothing)
• you have a child or grandchild
• one of you is diagnosed with a serious illness
• you buy or sell property, or inherit money
• an executor or guardian is no longer suitable

A will only works after death. If one of you lost capacity through illness or an accident, the other would have no automatic right to deal with your bank accounts or your share of the house. Lasting Powers of Attorney fix this. Most couples make mirror wills and LPAs at the same appointment.