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 legal adult who is of sound mind generally executes wills. Estate planners refer to this person as the “testator”. Each type of will is used for specific purposes. A testator’s choice of which will to write will depend on the circumstances. This article will help you understand the different kinds of wills available and help you choose the best will for your estate plan.
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:
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.
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.
Distributing assets, guardianship, and property
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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.
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.
Testators with underage beneficiaries or inheritance recipients
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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.
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.
If you are a domestic partner or spouse who wants the other testator to inherit your assets at death, then this is for you.
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Limitations:
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.
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.
People who wish to prepare for medical emergencies.
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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.
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 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.
Last-minute estate planning in dire circumstances
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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 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.
Testators who wish to express their final wishes orally
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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 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.
Testators who wish to transfer assets into a trust after their death
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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 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.
Will-makers who are convinced they are close to death
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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.
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.
Virtual estate planning is fast and low-cost
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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 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.
Couples that want more flexibility in their estate planning than what a joint will can offer
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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.
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.
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.
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.
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.
People frequently ask these questions about different types of wills.
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.
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.
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:
Note: Some couples choose to separate their estates. Each member of the partnership chooses their own will, based on their needs and assets.
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:
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.
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.
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