Many married couples think writing a will is simple. “I leave everything to my spouse” seems clear enough. After all, the house, the savings, the investments – you built them together, so naturally it should all go to each other, right?
But here’s the reality: life doesn’t always go according to plan.
What happens if one spouse passes away unexpectedly first?
What if you have children under 18?
What if one spouse wants to remarry later?
Without careful planning, your joint assets might not go where you expect.
In this article, we’ll walk through practical strategies couples often overlook when writing wills for joint-owned assets, especially here in Malaysia.
Why both spouses should have their own will?
Even if you and your spouse have the same intentions, each of you should write your own will. Some couples think writing one mutual will together is efficient. It sounds simple: “We both sign this one will, and it covers everything for both of us.” But this approach can cause problems later.
The consequences of having a joint / mutual will:
While a joint or mutual will may look convenient, it can carry heavy legal consequences.
In Malaysia, once one spouse passes away and the mutual will is proven, the surviving spouse may be legally bound by the agreed distribution and may lose the freedom to change it, even if life circumstances change drastically.
This means:
- If the surviving spouse remarries, he or she may not be able to revise the will to provide for the new spouse or new children.
- If relationships with beneficiaries deteriorate, the surviving spouse may still be locked into the original distribution plan.
- If the surviving spouse acquires new assets (such as a new house or investments) after the first spouse’s death, family members may have different understandings as to whether those assets are also meant to be governed by the joint / mutual will, which can easily lead to disputes.
- Family members may challenge the estate, arguing that the survivor is merely holding the assets on trust and cannot deal with them freely.
In short, a mutual will can turn a flexible estate plan into a rigid and outdated one. That is why we strongly do not encourage couples to make a single joint or mutual will.
Separate wills allow each spouse to:
- Retain full control over his or her own assets, and
- Update the will as life changes.
The hidden problem with jointly owned assets:
Many couples assume that joint ownership automatically solves inheritance issues.
Unfortunately, it doesn’t. Even if you and your spouse own a house or bank accounts jointly, your individual share still needs to be dealt with in your will.
Why does this matter?
In Malaysia, under the Distribution Act 1958, if you pass away without making a valid will for your share of a joint asset, your share may be divided among your legal heirs according to the law. That could mean your share of the house or joint bank account might be split between:
- your surviving spouse,
- your parents (if they are still alive), and
- your children.
This is exactly the kind of situation most people never think about. You might expect everything to go to your spouse. But legally, part of your share could go to your parents instead unless your will clearly states otherwise.
Key points most couples overlook:
1. Backup beneficiaries
Life is unpredictable. If your spouse or primary beneficiary cannot inherit, maybe because they pass away first, or your children are still minors, your will should clearly state who inherits next. Without this, part of your estate may fall into intestacy and be distributed according to law rather than your wishes.
2. Plan for minor children or dependents
If you have children under 18 or dependents who are not financially independent, simply leaving them money is not enough.
You should consider:
- Appointing guardians,
- Setting up a trust, and
- Giving clear instructions on how the funds are to be managed and used.
This ensures the assets are protected and properly administered until the children are mature enough.
3. Clear instructions for joint property
Avoid vague clauses like “all to my spouse” without considering what happens next.
Ask yourself:
- If my spouse passes away before me, who should inherit my share of the house?
- What about joint bank accounts, investments, and insurance proceeds?
Being specific prevents confusion and future family conflict.
4. Regularly Review Your Wills
Life changes, such as marriage, buying new property, having children, or the death of a family member can all affect your estate plan. A will written 10 years ago might no longer reflect your current intentions. Make it a habit to review and update your will periodically.
Simple rules of thumb for couples:
- Each spouse should have a separate will, even if intentions are the same.
- Do not assume joint ownership means automatic inheritance of your share. Your will must still deal with it.
- Always plan for “what if” scenarios:
What if your spouse passes away first?
What if your children are still minors?
What if your parents are still alive?
What if there is a second marriage?
Estate planning is not just about filling in forms or writing down names.
It’s about thinking ahead, anticipating possible changes in life, and protecting your loved ones from unnecessary stress and legal complications.
A well-prepared will doesn’t just say who gets what.
It ensures that when life doesn’t go exactly as planned, your family still gets cared for in the way you intended.
You may make an appointment with our legal advisor here: https://calendly.com/finex-and-co-legacy-advisory/tea-talk-with-legal-expert
