There are many types of wills that address differing circumstances. While most wills have similar basic requirements, each type of testament serves a specific purpose. A will is a document that reflects your last and final will regarding your belongings, as well as your current dependents. Through a last will and testament, you should aim to clearly define who gets what, within the standards required of your state’s laws.
When drafting, preparing, finalizing, and notarizing a will, it pays to be aware of the basics: a will should be witnessed, its creator should be at least 18 years of age, and the creator (testator) must appoint an executor to administrate the will once he or she passes away. However, that does not mean wills are one size and shape. There are many types of wills and ways to draft and prepare one. While some wills may suit you much better than others, there are some types of wills that should be avoided entirely.
Simple wills are written without additional clauses, and, as the name implies, they only fulfill one major purpose: they dictate who gets what. Some might argue that a simple will is one that authoritatively divides property equally between the surviving next of kin. However, a simple will is, simply, any last will and testament that only lists beneficiaries and their respective share of the estate, alongside one or more potential administrators/executors. It’s within a person’s interest to name more than one executor in case the first pick refuses or passes away before the will can be amended.
A set of simple rules and standards apply. Simple wills today are usually digitally typed, printed, and signed by the testator and several witnesses. Once the will is notarized, it is official. Wills can be amended, and similarly, these amendments require witnesses. Witnesses are mandatory to help ensure that a will isn’t written and signed under duress or coercion, or faked. A will created without any witnesses may be argued as valid but must in some shape or form be proven to be legitimate in a probate court. Not all states accept these types of wills that have not been witnessed.
Holographic wills are types of wills that are usually found as handwritten notes. They may be deathbed wills or written in conditions where other means of creating a will were not available (such as in a combat zone). Holographic wills can be the results of a life-threatening situation or a last-minute decision to create a will before death. Not all states accept holographic wills.
California, however, recognizes holographic wills. These are by no shape or form ideal, and can easily be challenged and invalidated if it’s proven that they were written in a time when the testator had limited mental faculties – but if a holographic will is properly dated, entirely handwritten, and displays testamentary capacity, it may be accepted.
Oral wills are exceptionally hard to prove, as they are purely verbal. Also known as a nuncupative will, the validity of an oral will is highly limited and typically only reserved for extreme situations, such as a soldier’s last wish on the battlefield. Oral wills are very difficult to prove.
Joint wills are an option for a married couple, and act as a single document that becomes two separate types of wills when one person passes away. In a joint will, the surviving spouse becomes the decedent’s trustee, managing the distribution and administration of all their assets. Joint wills are rigid but can be a cost-effective way for a married couple to design their estate plan.
Mutual wills are similar to joint wills in that they consist of a single will that acts as a separate will for two people, but in a mutual will, both sides agree to each other’s beneficiaries and clauses, with the caveat that one cannot revoke nor amend the other. Mutual wills are very rigid, because they require both parties’ mutual consent to make any changes.
Testamentary Trust Wills
A testamentary trust will is unique, because rather than simply listing beneficiaries, it creates and activates a trust that is created separately, and then funds the contents of itself (the will) into the trust. A will can have more than one testamentary trust, but you can only have one valid will.
Trusts are agreements between a grantor, a successor trustee, and a series of beneficiaries. Once a testamentary trust goes into effect, it is the trustee’s job to manage the contents of the trust and distribute them among the trust’s beneficiaries as per the grantor’s wishes. The contents of a trust do not need to pass through probate.
Despite a somewhat misleading name, living wills are not in any shape or form related to a last will and testament. In fact, it refers to an entirely different estate planning document that services as a method of recording a person’s health care directives, otherwise known as advanced directives. Essentially, these directives are their medical care wishes, should they find themselves unable to respond or communicate. These types of wills:
- Are useless after death and exist solely to help doctors and family members make better healthcare decisions for an incapacitated loved one.
- Are not always necessary but can be an important tool in helping you assert your beliefs and wishes when you aren’t physically there to communicate with your doctors.
- May be used to agree to or rule out the use of life-prolonging procedures or write off specific surgeries and operations. They are particularly useful in cases where certain medical procedures are likely to be a consideration in the not-so-distant future.
Nonetheless, there are other ways to handle end-of-life care and ensure that your wishes and ideals are upheld, even when you aren’t around to defend them. Regardless of what you decide to do about your estate plan, it’s imperative to seek professional legal help when sitting down to design an estate plan.
Whether all you plan to do is draft a single simple will, or a series of trusts to bypass the probate process, having an experienced professional around can make a serious difference. Especially when a single clerical error can set you and your family back thousands of dollars, and prolong an already potentially lengthy endeavor.