A last will and testament are one of the most crucial estate planning documents. Wills allow you to direct where your property will go upon death. Additionally, they provide peace of mind by choosing an executor who will take care of your affairs. For estate planners, the only challenge lies in deciding between the different types of wills.
Although state law varies on requirements, wills are generally executed by a legal adult who is of sound mind, and estate planners call this person the "testator." Different types of wills serve unique purposes, and the type of will a testator will write depends on specific circumstances. To simplify your estate planning, we'll break down the different types of wills and help you pick the right one.
What information goes in a will?
Within the will, a testator chooses an executor to handle the distribution of their estate. The testator must also sign and date the document, typically in front of one or more witnesses. The will may also require notarization by a state official. Different types of wills may include special provisions or emphases, but most of them include:
- The testator's basic personal information
- A named executor
- The preferred guardians for any pets or minor children
- A list of assets, investments, and property
- A list of named beneficiaries
- Signatures from the testator, witnesses, or notary official (depending on state law)
What are the four basic types of wills?
Instead of asking "What is a will," an estate planner should instead ask themselves, "What type of will is best suited for the situation?" The four main types of wills are simple wills, testamentary trusts, joint wills, and living wills.
1. Simple will
A simple will—sometimes known as "basic"—is the type most people associate with the word "will." With a simple will, you can decide who will receive your assets and name a guardian for any minor children. Generic or statutory forms with a simple will format provide an excellent framework. However, you may want to seek legal advice before writing one.
This type of will is intended for:
Distributing assets, property, and guardianship for basic estate planning.
Benefits:
- Easy to write
- Great for testators with few assets
- Simple to amend or expand on
Limitations:
- Poor for intricate estate planning
- Typically only includes basic provisions
Considerations and differences
Some estate planners treat simple wills like a starting point. Testators may replace the simple will with a more robust type as they earn more assets or have children.
2. Testamentary trust will
A testamentary trust will places some assets into a trust for the benefit of your beneficiaries and names a trustee to handle it. Through this type of will, you can put assets in a trust and place conditions on the inheritance, which may be gradual based on age or other factors.
This type of will is intended for:
Testators with underage beneficiaries or inheritance recipients.
Benefits:
- Distributes and protects assets belonging to the will maker's beneficiaries
- Assets included can grow or accrue more value
- Unlimited beneficiaries
- Low-cost will option
Limitations:
- Unavoidable probate process
- Assets will become public
- Court fees quickly grow as trustees must go to probate annually
- Greater responsibility on the executor
Considerations and differences
You cannot revoke or change the terms of a testamentary trust after the testator dies. However, it falls on the executor to oversee the document's terms. In some cases, they may fail to act according to the trust creator's exact expectations.
3. Joint will
Two testators sign a joint will to create a shared estate plan. The terms of joint wills—including executor, beneficiaries, and other provisions—cannot change even after the death of one testator. Because of this inflexibility, joint wills can become problematic for surviving spouses who want to change their estate plans.
This type of will is intended for:
Domestic partners or spouses who want the other will maker to receive their assets upon death.
Benefits:
- Assured inheritance for beneficiaries
- Includes room for each spouse's individual wishes
- Cost and time-effective
Limitations:
- Irrevocable after one spouse dies
- More complicated probate process
Considerations and differences
Even though a joint will includes provisions for both partners, it only counts as one document. This saves time and money from executing two separate wills.
4. Living will
A living will has nothing to do with distributing your property after your death. Instead, it allows you to choose what medical treatments you want to have if you become incapacitated. In a living will, you may also name someone to make decisions on your behalf.
Need help writing a living will? Create your living will today.
This type of will is intended for:
Individuals who want to plan for medical contingencies.
Benefits:
- Less pressure on the testator's family
- Includes a range of medical decisions
- Prevents treatments you wouldn't want
Limitations:
- The testator must demonstrate a sound mind
- Some decisions may be open to interpretation
- Requires a physician's compliance
Considerations and differences
In some states, an advance health care directive combines a living will and health care power of attorney or medical proxy. You must understand your state's laws on medical directives to ensure they're fulfilled.
Other common will types
While the last four wills are the most popular, there are six other will options in estate planning. If your estate plan has special needs, you may prefer another type listed below:
Holographic will
Holographic wills are handwritten forms testators write without witnesses or legal oversight. Will makers tend to write them under extreme or life-threatening circumstances. Like simple wills, they usually focus on the distribution of assets. However, courts may deem them invalid without witness signatures.
This type of will is intended for:
Last-minute estate planning in dire circumstances.
Benefits:
- Some states make provisions to accept them
- No fees or oversight required
Limitations:
- Courts may not consider holographic wills valid
- Hastily written and prone to mistakes or contradictions
Considerations and differences
Each state sets its requirements for accepting a holographic will. Usually, executors must prove the testator intended to use the document as a will. However, without any witnesses, family members or beneficiaries may challenge their validity.
Nuncupative will
Verbal instructions about handling your assets count as nuncupative wills. For this reason, some estate planners refer to them as oral wills or verbal wills. While they rarely hold up in court, some states set requirements for accepting an oral will. This may include the presence of witnesses or writing the verbal will after saying it.
This type of will is intended for:
Testators who want to communicate their final wishes verbally.
Benefits:
- Some states conditionally recognize them
- Easy to produce
Limitations:
- Easily miscommunicated
- Lack of witnesses hurts the will's validity
Considerations and differences
Some states accept an oral will once the patient gets diagnosed with a terminal illness. However, others only accept verbal wills from patients near death without any chance of recovery.
Pour-over will
While most wills handle assets individually, pour-over wills move all assets into a testator's living trust. Once there, the executor retains total control over the assets. This can preserve the testator's privacy better than other types of wills. Additionally, assets already in the trust stay in the trust.
This type of will is intended for:
Testators who want to move assets into a trust after they pass away.
Benefits:
- Simplifies estate planning
- Privacy for assets in the trust
Limitations:
- Some states don't recognize pour-over wills
- Long, costly legal disputes involving trusts
Considerations and differences
Assets transferred into the trust by the pour-over will must go through probate. However, assets already included won't.
Deathbed will
Deathbed wills refer to spoken or written statements when the testator faces near-certain death. Like holographic wills, they are spontaneous and may incorporate witnesses.
Because they're written in high-stress situations, they can contradict other documents or contain errors. As a result, they don't hold up as well in court. In other cases, a deathbed will might accidentally exclude important information. The excluded assets may go through probate court.
This type of will is intended for:
Will makers who believe they are near death.
Benefits:
- Witnesses can vouch for the will maker
- Testators can dictate or write the will
Limitations:
- Difficult to prove the will maker's sound mind
- Often dropped in court
- Frequently contradictory or missing important information
Considerations and differences
A deathbed will won't hold up unless the will maker was of sound mind. As a result, deathbed wills often face challenges over the testator's mental capacity.
Online will
Online wills are legal forms that work like other will documents. Users can enter their estate planning needs into an online form. From here, they can retain the online will and use it the same way they would any other.
This type of will is intended for:
Fast, virtual estate planning at a low cost.
Benefits:
- Easy to write
- Different providers to choose from
Limitations:
- May not meet state requirements or hold up in court
- May not receive oversight from an attorney for wills and estates
Considerations and differences
Not all online will service providers offer guidance or oversight. Testators should research an online will company, state-specific documents, and legal guidelines before investing in one.
Mirror-image will
Mirror wills refer to identical wills written by married couples or domestic partners. In most mirror-image wills, both partners leave their estate to the other and share the same secondary beneficiaries. These wills help couples ensure their financial security before passing assets to their heirs.
This type of will is intended for:
Couples who want a more flexible estate plan than a joint will allows.
Benefits:
- Helps common law partners retain assets
- No inheritance tax when transferring assets between partners
Limitations:
- Surviving partners can change their will after their spouse passes.
- Beneficiaries may lose their inheritance if a surviving partner changes their will.
Considerations and differences
Unlike joint wills, mirror-image wills are two separate documents. A surviving spouse can rewrite their will to change the original estate plan at their discretion.
How to pick the right type of will?
The right will for your estate depends on your priorities, assets, and other directives. To find a will suited to your needs, ask yourself a few crucial questions written below.
Note: You can have more than one type of will at the same time and different valid wills can apply at once. A living will, for example, can legally coexist with a simple will since they serve entirely different purposes. Consult an attorney to leverage multiple wills.
What are your estate planning priorities?
Although most wills outline and distribute a testator's assets to beneficiaries, it's not their only function. Other wills for different estate planning needs include:
- Spousal or partner support: Joint wills and mirror-image wills route assets to a surviving spouse or partner. While the assets eventually pass on to beneficiaries, that usually occurs once both partners pass away.
- Advance medical directives: Living wills help ensure the testator receives preferred medical treatment if they're incapacitated.
- Last-minute alterations: Deathbed, holographic, and nuncupative wills let testators make last-minute changes to their estate plan.
What size is your estate?
More intricate estate planning calls for more specific will types. While joint wills, mirror-image wills, testamentary trusts, and pour-over wills give the testator and executor control, not everyone needs them. Individuals with limited assets or straightforward estate plans can rely on a simple will.
Note: Online, nuncupative, and holographic wills also offer simplicity. However, they may not hold up in court.
Do you want to place assets in a trust?
Testamentary trust and pour-over wills move assets into a trust after death. This process transfers property with more privacy. Additionally, the executor holds greater control over these assets. Ultimately, trusts let executors verify the terms of inheritance before distributing property.
FAQs about different types of wills
Here are some frequently asked questions about the different will types.
What is the most popular type of will?
Simple wills are the most popular type of will in estate planning. Because simple wills appoint an executor and outline the distribution of assets, they fulfill your basic estate planning needs. Unlike other types of wills, they are easier to write and understand.
What type of will is best?
The best will for you depends on your specific estate plan. However, estate planners generally avoid nuncupative, holographic, and deathbed wills. In most cases, any of the alternative options will serve your estate better.
What type of will should married couples get?
Married couples generally choose joint wills or mirror-image wills. Both of these documents focus on domestic partners' or married couples' needs. To help pick one, consider that:
- Joint wills are inflexible, single documents
- Mirror-image wills are an easily amended pair of documents
Note: Some partners choose to manage their estates separately. In this case, each member of the relationship chooses a will suited to their assets and needs.
What should you avoid putting in a will?
Personal, medical, religious, and financial information designed for other estate documents should not go into a will. Any inconsistencies between forms can extend the probate process. Information to leave out includes:
- Business interests
- Certain property held in a trust
- Organ donor requests
- Funeral arrangements
- Assets that shouldn't go to probate
- Accounts that already have named beneficiaries
Should I use a statutory or attorney-drafted will?
Statutory wills are simplified will templates with pre-written language. They can accommodate many estate plans. Additionally, you can write statutory wills without a lawyer. Attorney-drafted wills, or custom wills written by an attorney, suit intricate estate plans and a large number of assets.
Note: Statutory and attorney-drafted wills are not unique categories or will types like simple and pour-over wills. You can write most wills using statutory or attorney-drafted forms. The decision comes down to testator preference.
Protecting your loved ones and assets
By creating a will, you can rely on state-sanctioned asset protection and know that your last wishes will be honored.
The assistance of an attorney for wills and estates can be invaluable in choosing the right type of will for you. Taking the time now to make sure you've done things right can make a significant difference for your loved ones later on.
