What are the Different Types of Wills?

Last wills and testaments are among the most important estate planning documents. Wills let you decide what happens to your property after death. You will also need to choose an executor to take care of all your affairs. The only difficult part for estate planners is deciding which type of will to use.

A testator can choose an executor in their will to manage the distribution of the estate. The testator must sign and date the document, usually in the presence of at least one witness. A state official may be required to notarize the will. Different types of wills can include special provisions and emphases, but most include the following:

• Basic personal information about the testator
• The name of the executor
• The preferred guardians for any pets or minor children
• List of investments, property, and other assets
• List of beneficiaries
• Signatures of the testator, witnesses, or notary official (depending on state laws)

There are four basic types of wills

An estate planner should not ask, “What is a Will?” But instead ask, “What type of will is most appropriate for this situation?” Simple wills, testamentary wills, joint wills and living wills are the four main types of wills.

1. Simple will

When most people hear the word “will”, what comes to their mind is a “simple will.” You can choose who receives your assets, and you can also name a guardian to care for minor children. Generic or statutory forms with the format of a simple will can be an excellent choice for most people. However, you may wish to consult a lawyer prior to writing one.

This type of will is for:

Distributing assets, guardianship, and property

Benefits:

• Easy to write
• Good for testators with limited assets
• Easy to modify or expand upon

Limitations:

• Poor for intricate estate planning
• Includes only the essentials

Differences and considerations

Some estate planners treat simple wills like a starting point. As testators earn more money or have more children, they may choose to replace their simple wills with more robust ones.

2. Testamentary trust will

With a testamentary will, you can place some assets in it for your beneficiaries and name a trustee who will manage the trust. This type of will allows you to place assets into a trust, and then set conditions for the inheritance. These may include age-related factors or gradual inheritance.

This type of will is for:

Testators with underage beneficiaries or inheritance recipients

Benefits:

• Protects and distributes assets to the beneficiaries of the will
• The assets included can increase or accumulate more value
• Unlimited number of beneficiaries
• This is a low-cost option

Limitations:

• Probate is a necessary process.
• The assets will be made public
• As trustees must go through probate every year, court fees will grow
• Executors have a greater responsibility

Differences and considerations

After the death of the testator, you cannot change or revoke the terms in a testamentary trust. The executor is responsible for overseeing the terms of the trust document. They may not, however, always act in accordance with the exact expectations of the trust creator.

3. Joint will

Two testators can create a shared estate plan by signing a joint will. Even after one testator’s death, the terms of a joint will, including executor, beneficiaries and other provisions, cannot be changed. Joint wills are inflexible and can make it difficult for surviving spouses to alter their estate plans.

This type of will is for:

If you are a domestic partner or spouse who wants the other testator to inherit your assets at death, then this is for you.

Benefits:

• Assurance of inheritance for beneficiaries
• Included space for individual wishes of each spouse
• Time and cost-effective

Limitations:

• After the death of one spouse, the will is irrevocable
• The probate process is more complex

Differences and considerations

A joint will is only one document, even though it includes provisions for each partner. It saves both time and money by not having to execute two separate wills.

4. Living will

The purpose of a living will is not to distribute your estate after you die. Instead, it allows you to decide what medical treatments you would like to receive if you were to become incapacitated. You can also designate someone else to make decisions for you in a living will.

This will type is for:

People who wish to prepare for medical emergencies.

Benefits:

• Reduced pressure on the family of the testator
• Can include a variety of medical decisions
• Can list treatments you would not want to have

Limitations:

• The testator must demonstrate that they are of sound mind
• In some cases different interpretations are possible
• A doctor’s compliance is required

Differences and considerations

In some states, an advance health care directive combines a living will and health care power of attorney or medical proxy. To ensure that medical directives are followed, you must be familiar with the laws of your state.

Other types of wills

Although the four types of wills listed above are by far the most common, there are six more will types available for estate planning. You may want to choose one of these will types if your estate planning is unique.

Holographic will

Holographic wills (known in Louisiana as olographic testaments), also known as handwritten documents, are forms that testators create without the presence of witnesses or any legal oversight. These wills are usually written in extreme situations or when life is at stake. They are similar to simple wills in that they focus on asset distribution. However, the courts can deem them invalid if they do not have witness signatures.

This type of will is for:

Last-minute estate planning in dire circumstances

Benefits:

• Some states have made provisions for accepting them
• No fee or oversight required

Limitations:

• Holographic wills may not be considered valid by some courts
• Hastily written, prone to errors or contradictions

Differences and considerations

Each state has its own requirements for accepting a will holographic. Executors usually have to prove that the testator intended the document to be used as a will. Nevertheless, beneficiaries or family members may contest their validity if there are no witnesses.

Nuncupative will

Nuncupative wills are verbal instructions that you give to your family about how to handle your assets. Some estate planners call them verbal or oral wills. Some states require that an oral will be accepted, even though they are rarely upheld in court. It may be necessary to have witnesses present or write down the will after it is said verbally.

This type of will is for:

Testators who wish to express their final wishes orally

Benefits:

• Some states recognize them conditionally
• Easy to produce

Limitations:

• Easy to miscommunicate
• The validity of a will is affected by the absence of witnesses

Differences and considerations

Some states will accept an oral testament once a terminal disease is diagnosed. Some states only accept oral wills of patients who are near death and have no chance to recover.

Pour over will

Pour-over wills, unlike most wills that handle assets separately, move all assets to a testator’s living trust. The executor has complete control of the assets once they are in the living trust. It can protect the privacy of the testator better than any other type of will. The assets that are already in trust remain in trust.

This will type is for:

Testators who wish to transfer assets into a trust after their death

Benefits:

• Simplifies estate planning
• Assets in trust are protected from prying eyes

Limitations:

• Some states don’t recognize pour-over wills
• Trust disputes can be expensive and long-lasting

Differences and considerations

The assets transferred to the trust through the pour-over will are subject to probate. Assets already included in the trust will not be probated.

Deathbed will

Deathbed wills are written or spoken statements made by the testator when he is facing a near-certain death. Like holographic wills, they are also spontaneous, and they may include witnesses.

They can contain errors or contradict other documents because they are written under high stress. For these reasons, they don’t stand up well in court. In some cases, an accidental omission of important information can occur in a will made on the deathbed. Assets that are excluded may be referred to probate court.

This will type is for:

Will-makers who are convinced they are close to death

Benefits:

• Will makers can be verified by witnesses
• The will can be written or dictated by the testator

Limitations:

• It is difficult to prove the soundness of the mind of a will maker
• Often dropped in court
• Information is often contradictory, or it may be missing important information

Differences and considerations

The validity of a deathbed will is dependent on the mental capacity of the maker. Deathbed wills are often challenged over the mental capacity of the testator.

Online will

An online will works the same as other will documents. Online forms allow users to enter their estate planning requirements. The online will can be retained and used as a regular will.

This type of will is for:

Virtual estate planning is fast and low-cost

Benefits:

• Write easily
• Choose from a variety of providers

Limitations:

• May not meet state requirements, or stand up in court
• May not receive oversight from an attorney for wills and estates

Differences and considerations

Some online will services do not offer oversight or guidance. Before investing in an online will, it is important to research the company, documents specific to each state, and legal guidelines.

Mirror image will

Mirror wills are identical wills that have been written by married couples or domestic partners. In the majority of mirror image wills, each partner leaves their estate to the other and shares the same secondary beneficiaries. These wills allow couples to ensure their financial stability before they pass assets on to their heirs.

This will type is for:

Couples that want more flexibility in their estate planning than what a joint will can offer

Benefits:

• Common law partners can retain assets
• Transferring assets between partners is exempt from inheritance tax

Limitations:

• After the death of their spouse, surviving partners can make changes to their will.
• Beneficiaries can lose their inheritances if the surviving partner makes a will change.

Differences and considerations

Mirror image wills differ from joint wills in that they are two separate documents. The surviving spouse may rewrite the will at their own discretion to alter the original estate plan.

What is the best type of will to choose?

Your priorities, your assets and your other directives will determine the right will for you. Ask yourself the questions below to find a will that suits your needs.

It is possible to have multiple wills at the same time. Living wills, for instance, can coexist legally with simple wills, since they have completely different purposes. Consult an attorney if you want to use multiple wills.

What are your estate plan priorities?

Most wills distribute the assets of a testator to their beneficiaries, but that’s not their only function. There are also wills that cater to different estate planning requirements.

• Spousal support or partner support: Joint wills and mirror image wills distribute assets to the surviving spouse or partner. The assets are eventually passed on to beneficiaries but this usually happens after both partners have died.
• Advance Medical Directives: Living wills ensure that the testator gets preferred medical care if they become incapacitated.
• Last minute alterations: Deathbed, holographic and nuncupative wills allow testators to make last-minute modifications to their estate plans.

What is the size of your estate?

Complex estate planning requires specific types of wills. Joint wills are a good option for those who want to give their executor and testator control. Mirror-image wills and testamentary trusts also work well. Simple wills are a good option for those with few assets and simple estate plans.

Note: Nuncupative wills, online wills, and holographic wills are simple. However, they may not stand up in court.

Would you like to put assets into a trust

Testamentary trusts and pour over wills move assets into a trust after death. This method allows for a more private transfer of property. The executor also has greater control over the assets. Trusts allow executors to verify inheritance terms before distributing assets.

FAQs on different types of Wills

What is the most common type of will?

In estate planning, people most commonly use simple wills. An executor is appointed who outlines how assets should be distributed. They fulfill all your basic estate needs. They’re simpler to understand and write than other types of estate planning documents.

What is the best type of will?

Your estate plan will determine the best will to use. Estate planners tend to avoid wills that are holographic, deathbed, or nuncupative. Most of the time, alternative options are better for your estate.

What type of will is best for married couples?

For married couples and domestic partners, a joint will or mirror wills are common. Both types of wills cater to the specific needs of married or unmarried couple. There are differences to keep in mind, so, to help you choose, consider the following:

• Joint wills are single documents that are inflexible
• Mirror wills are actually a pair of documents that can be easily modified

Note: Some couples choose to separate their estates. Each member of the partnership chooses their own will, based on their needs and assets.

What are some things you should avoid including in your will?

You should not include medical, financial, religious, and personal information intended for other estate documents in a will. Inconsistencies in forms can prolong the probate or succession procedure. Do not include the following information:

• Business interests
• Property held in trust
• Organ donor requests
• Funeral arrangements
• Non-probate assets
• Accounts with named beneficiaries

Should I use a statutory or attorney-drafted will?

Statutory wills are pre-written templates that simplify the process of creating a will. They can accommodate a wide range of estate plans. You can also write statutory wills without the help of an attorney. Custom wills or attorney-drafted wills are best for complex estate plans with a lot of assets.

Note: Statutory wills and attorney-drafted wills are not unique categories of wills like simple wills and pour-over wills. You can write most wills using a form an attorney prepares or a statutory form.

It all comes down to the testator’s preference.

Protecting your loved ones and assets

You can be sure that you will receive the protection of your assets and wishes by creating a valid will.

An attorney who specializes in wills and estates is a valuable resource when it comes to choosing the best type of will. It’s important to take the time right now to ensure that you have done everything correctly. This will make a big difference in the future for your family.