Different Types of Wills
Understanding the right will for your needsBy Canaan Suitt, J.D. | Last updated on January 29, 2023
Use these links to jump to different sections:
- What Are the Most Common Types of Will?
- Common Kinds of Wills
- Wills That Relate to Trusts
- Types of Wills To Avoid
- Which Type of Will Is Best?
- Questions for an Estate Planning Attorney
A last will and testament is a core legal document of any estate plan.
The person who makes a will is called the “testator.” In a will, the testator makes their final wishes known and directs how their estate should be distributed when they die. Estate assets include real estate, personal property, and financial assets such as bank accounts.
Without a will, your estate will be distributed through your state’s intestate succession laws. Generally, state laws distribute assets starting with your closest family member (surviving spouse if there is one) and work out to your most distant family members. Learn more about intestacy by reading this article.
To avoid intestate succession and ensure that your estate is distributed how you want it to be, it’s essential to have a valid will to make your wishes known.
“Everyone should have a last will and testament,” says Maryland estate planning attorney Jeremy D. Rachlin.
This article will cover some of the most common types of wills. The best way to figure out what type of will and overall estate plan is best for you is to speak with an estate planning lawyer.
What Are the Most Common Types of Will?
There are a few types of wills that fit different circumstances. “It’s not one size fits all,” says Rachlin. “The terms of a will are going to vary.”
“So, everybody can have a document that’s called a last will and testament, whether you’re single, married, in a domestic partnership, widowed, or what have you—everybody can have a will, but the terms of that document will vary based upon the person’s marital status, whether or not the person has children, and many other factors,” he says.
Regardless of the type of will, there are some key requirements to make a will valid:
- The will must be in writing
- You must sign and date the will
- There must be witnesses when you sign and date the will (typically two or three people who are not beneficiaries)
Additionally, the testator must be of “sound mind” when they create a will. Essentially, this means the testator understands what a will is, what their will does, and who will benefit from the will. Read this article to learn more about how to make a valid will.
Wills do several important things in disposing of a person’s estate:
- Explicitly state the will contains the testator’s final wishes
- Name beneficiaries for the distribution of estate assets
- Appoint a guardian for minor children
- Name a personal representative (called an executor in some states) who will guide the will through probate court and ensure the testator’s wishes are fulfilled
“Some states have laws that protect spouses from disinheritance via something called an elective share,” says Rachlin.
“In Maryland, for example, if a spouse is disinherited from a will or trust, they have a period of time after their spouse has passed away to elect a share of their deceased spouse’s estate. This share can be up to 50 percent of the deceased spouse’s assets, whether the will provides for that or not,” says Rachlin.
“The elective share isn’t something that the surviving spouse must opt into, but it is something that’s available for them,” he says.
Common Kinds of Wills
- Simple will. Also called a statutory will, a simple will accomplishes the basic tasks of a last will and testament by stating your final wishes, naming beneficiaries, and appointing an executor. Simple wills can also appoint a guardian for minor children if applicable. Simple wills are ideal for most people who have smaller or uncomplicated estates.
- Joint will. A joint will is a single document in which married couples make their wishes for distributing their estate known. They create and sign the will together. Once created, a joint will can’t be altered without the consent of both parties. So, if one spouse passes away, the surviving spouse can’t adjust the joint will on their own if circumstances change.
- Mirror wills. Because joint wills are hard to alter, mirror wills can be a better option. Mirror wills are simply identical wills created by a married couple or partners. Each will leaves the estate belonging to one spouse or partner to the surviving spouse or partner and makes the same beneficiary designations. When one spouse dies, the other spouse inherits the estate. The surviving spouse can then alter their will as they see fit.
Wills That Relate to Trusts
Generally speaking, a trust is an estate planning tool that transfers estate assets to named beneficiaries. Trusts often work alongside wills to create an overall estate plan.
The creator of a trust is called the “grantor.” The person who oversees the distribution of assets from the trust is called the “trustee.” The grantor appoints a trustee in the trust document and names the parties to whom the trust assets should be distributed.
A couple of common types of wills relate to the creation or maintenance of trusts:
- Testamentary trust will. Whereas a living trust is created while the grantor is alive, a testamentary trust is only created when the grantor dies. A will provides for the creation of a testamentary trust, specifying the assets to be put into the trust and how the assets should be distributed. Unlike living trusts, testamentary trusts must pass through probate since they are part of a will.
- Pour-over will. Pour-over wills function as a supplement to living trusts. A pour-over will specifies that any assets not included in a living trust when the grantor dies should be transferred to the trust. Assets placed in a living trust while the grantor is alive will avoid probate. However, assets placed in a trust through a pour-over will must go through probate, just like any assets distributed in a will.
Types of Wills To Avoid
There are a few types of wills to avoid, if possible. The way to avoid them is by planning ahead.
- Holographic wills. Holographic wills are handwritten wills that other parties do not witness. Only about half of the states recognize the validity of holographic wills. And in the states that do recognize them, proving the validity of holographic wills can be challenging for example: did you really write the will? Is the will really in your handwriting? Is the signature on the will really yours? While having a holographic will may be better than having no will at all, they are best avoided. It’s much better to prepare a will with witnesses and the assistance of an estate planning lawyer.
- Oral wills. Also known as “deathbed wills” or by the legalese name “nuncupative will,” oral wills are spoken instead of written down. They are often a last resort for individuals who don’t have a written will and are concerned that they won’t be able to write one before they pass away or become incapacitated. Like holographic wills, the validity of oral wills depends on the state you live in, and some states don’t recognize them due to statutes of frauds. Generally, for states that do recognize them, oral wills must have been witnessed by multiple third parties who can corroborate the testator’s final wishes.
To avoid disputes that often arise with holographic and oral wills, prepare a will in consultation with an attorney ahead of time.
Which Type of Will Is Best?
Every person’s estate is different, and every person’s wishes for how they want their estate to be distributed are different.
For many estates, a simple will is sufficient to distribute assets and ensure that your affairs are in order. For married couples, joint or mirror wills are a good option. Valid wills can be completed on your own, or with the help of a lawyer.
It’s wise to at least speak with a lawyer about your situation, even if you do not end up using a lawyer to draft a will. Initial consultations with estate planning lawyers are often free and can be a very valuable source of insight.
If getting a lawyer’s help with a relatively simple will is wise, getting legal help for complex wills or estate plans involving trusts and other legal documents is highly advisable.
You may need to include other estate planning documents in your overall plan. For example:
- Advance healthcare directives (also called a living will) that give instructions for end-of-life matters and healthcare decisions (learn more about the difference between wills and living wills by reading this article.)
- A power of attorney is a legal document that appoints someone to make healthcare-related decisions on your behalf if you become incapacitated
- A living trust as an alternative method of distributing assets to beneficiaries
Again, speaking with a lawyer about these other estate planning documents is wise to ensure everything is taken care of.
Questions for an Estate Planning Attorney
As noted above, most estate planning lawyers give free consultations for potential clients. To get the most out of a consultation, ask informed questions such as:
- What are your attorney’s fees and billing options?
- What kind of will is best for me?
- What other types of estate planning documents do I need?
- Should I set up a trust?
- What happens if I need to alter my will?
- Is there a way to avoid probate court?
Once you have met with a lawyer and gotten your questions answered, you can begin an attorney-client relationship.
Look for a lawyer who specializes in wills in the Super Lawyers directory for your estate planning needs.
Additional Wills articles
- What is Wills Law?
- How Much Does a Lawyer Charge To Write a Will?
- What Makes a Will Valid?
- What Happens if You Die Without a Will?
- What Is the Difference Between a Will and a Trust?
- What Is a Will and Why Do I Need One?
- What’s the Difference Between a Living Will and a Will?
- Can I Draft a Will Without a Lawyer?
State Wills articles
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