Types of Wills: Which One Is Right for You?
by Philip Ahn, Attorney
There’s more to estate planning than deciding what happens to your assets. Selecting the most appropriate type of will ensures that things after you’re gone accurately reflect your final wishes. Understanding the various will types, and when they’re appropriate to use, can offer you and your loved ones peace of mind.
Four Main Different Types of Wills to Explore
A simple will is a straightforward estate planning tool that outlines asset distribution upon an individual’s death. This will is largely concerned with specifying what is distributed to whom.
A living will is a legal document enabling individuals to convey their medical wishes concerning end-of-life care and medical treatments if they cannot communicate their preferences due to critical situations or lack of capacity.
Unlike a testamentary will, which deals with estate assets, a living will focuses solely on medical decisions. It is an essential part of an individual’s estate plan, often accompanied by other estate planning documents like an advance healthcare directive.
A joint will, often chosen by married couples, is a single document that combines both spouses’ preferences into one unified expression of their final wishes.
Unlike separate wills, which individually reflect each person’s wishes, the joint will simplifies the estate planning process and ensures that the surviving partner inherits the estate in the event of one spouse’s passing.
This eliminates the need for separate documents, making it easier for couples to create a comprehensive estate plan.
When using joint wills in the estate planning process, it is essential to pay special attention to the treatment of minor children, personal property, and newly established trusts.
Overall, joint wills can be a practical and efficient solution for married couples looking to secure their estate assets and honor each person’s wishes in a single document.
Mutual Wills vs. Joint Wills: A mutual will consists of separate individual documents that contain mirrored provisions, whereas a joint will is a combined document. Mutual wills allow each individual (typically spouses) to retain control over their respective estate while ensuring coordinated arrangements upon their passing.
Testamentary Trust Wills
Testamentary trust wills establish trusts to manage and distribute assets to beneficiaries, often providing for the well-being of minor children and surviving spouses.
Unlike other types of wills, a testamentary trust will offer a structured approach to distributing assets, overseen by a designated personal representative and subject to probate court approval.
By incorporating testamentary trusts into their estate plans, individuals can have greater control over the allocation of their assets, even in the event of their passing.
Less Common Varieties Of Wills
Financial or practical reasons lead to the creation of types of wills that differ from more conventional testaments.
Mirror or mirror image wills are identical wills that couples often use. These similar wills reflect each spouse’s wishes regarding asset distribution and other considerations.
Mirror wills are commonly employed to ensure that both parties’ intentions align and are executed as intended in the event of their passing.
This approach provides two or more people with clarity and confidence in their estate planning, ensuring their wishes are respected and their economic well-being is safeguarded.
Unlike a standard will or other wills, a pour-over will complements a testator’s living trust.
If the testator passes away, this valid will ensures that any assets not included in the testator’s existing estate plan are directed accordingly, streamlining the transfer of estate assets.
It essentially acts as a mirror will to another document, working in tandem to safeguard the testator’s wishes. This type of will is beneficial when a surviving spouse passes, allowing for a seamless transition of assets into the estate plan’s structure.
Online wills offer a convenient way for individuals to create a statutory will, whether they are single or have a surviving spouse. Some digital platforms provide forms and guidance for drafting a valid will without requiring in-person consultations with lawyers.
While online wills can be a cost-effective option, it’s essential for users to carefully review and ensure their chosen platform complies with local laws to guarantee that their will holds up.
An individual who writes their own will without a lawyer creates what’s called a holographic will. Unlike traditional last will and testament documents, holographic wills are written by the person who is making the will and do not require witness signatures. This is a relatively unique legal concept in that individuals are allowed to avoid formal processes when there is no better alternative.
In some cases, holographic wills provide much-needed clarity around an individual’s final wishes. However, unclear or even competing holographic wills can cause serious disputes, especially when significant assets are involved. For example, the singer Aretha Franklin left behind several conflicting handwritten wills, leading to a court battle between her putative heirs.
A holographic will is better than nothing at all, but due to the circumstances surrounding holographic wills, they are especially open to challenge in court. They’re also treated differently across the country. In some areas, these statements are only valid if they were created in near-death situations shortly before an individual passed away.
Holographic wills are best relied on in dire circumstances when access to state-specific documents or legal counsel is limited. It’s advisable to seek legal guidance to ensure any legal document complies with applicable laws and safeguards the testator’s intentions.
Deathbed wills are written and witnessed legal instruments created in the final moments of an individual’s life. These express their last-minute wishes and are typically witnessed by individuals present during that time.
While deathbed wills can be valid under certain circumstances, their validity may be subject to scrutiny due to the testator’s state of mind and potential lack of capacity.
Nuncupative wills, also known as oral wills, are verbal declarations of a person’s final wishes made during specific situations when they cannot create a written will. These wills inherently present a number of evidentiary problems and often lead to complexities in the probate process.
Attorneys Can Assist with Selecting or Contesting Wills
Lawyers familiar with estate planning can explore the nuances of various different wills. They help clients settle on a valid will that accurately reflects their wishes and complies with the local law.
Contesting a last will and testament is also possible under certain circumstances. When individuals have concerns about the validity of a will, especially nuncupative wills or deathbed wills, they may take legal action to challenge its authenticity. Before threatening legal action, it’s advisable to ask a lawyer if there are grounds for contestation.