A last will and testament is 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 are the four basic types of wills?
The four basic types of wills are simple wills, testamentary trust wills, joint wills, and living wills. Each serves a distinct purpose in estate planning, so the right choice depends on your specific situation, assets, and family needs.
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.
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| Will type | Best for | Key feature |
| Simple will | Basic estate planning | Distributes assets and names guardians |
| Testamentary trust will | Underage beneficiaries | Creates a trust upon death with conditions |
| Joint will | Married couples or partners | Single document for two people; irrevocable after one dies |
| Living will | Medical planning | Specifies healthcare preferences if incapacitated |
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.
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 healthcare directive combines a living will and healthcare power of attorney or medical proxy. You must understand your state's laws on medical directives to ensure they're fulfilled.
Our step-by-step online tool helps you make key decisions with confidence, at your pace.
What are the other common types of will?
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 that 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—for example, if they remarry or their financial situation changes significantly after their partner's death.
Mutual will
Mutual wills are separate documents created by two people—typically spouses—who agree not to change their wills without the other's consent. Unlike joint wills, which are a single shared document, mutual wills are two independent documents bound by a contractual agreement.
The key distinction from joint wills lies in flexibility and legal clarity. While both parties are alive, mutual wills can be revoked if both agree to the change. However, after one party dies, the surviving party is legally bound by the original terms. This contractual element provides stronger legal protection than joint wills in most jurisdictions.
This type of will is intended for: Couples who want coordinated estate plans with more legal certainty than mirror-image wills but more flexibility during their lifetimes than joint wills.
Benefits:
- Separate documents provide clearer legal standing
- Contractual agreement offers stronger protection for beneficiaries
- Can be modified while both parties are alive
Limitations:
- Irrevocable after one party's death
- May require legal assistance to establish the contractual element
- Can create complications if circumstances change significantly
Considerations and differences: Mutual wills sit between mirror-image wills and joint wills on the flexibility spectrum. Mirror-image wills offer the most flexibility but least protection, joint wills offer the least flexibility, and mutual wills balance both concerns through their contractual framework.
Legal requirements for a valid will
Understanding the legal requirements for a valid will is essential before choosing which type to create. While specific rules vary by state, most jurisdictions share common requirements that determine whether a will can be legally enforced as follows:
- Legal age requirement. The testator must be typically 18 years of age or older in most states, though some states allow younger individuals to create wills under specific circumstances.
- Testamentary capacity requirement. The testator understands the nature of their assets, who their beneficiaries are, and what creating a will means.
- Witness requirement. Typically, a will requires two or three adult witnesses who observe the testator sign the document and then sign it themselves. These witnesses generally can’t be beneficiaries named in the will.
- Notarization requirement. Some states also accept notarization as an alternative or additional requirement. A self-proving affidavit—a notarized statement from witnesses confirming proper execution—can significantly expedite the probate process. While not required in all states, this affidavit eliminates the need to locate witnesses during probate to verify the will's authenticity.
- Other requirements. The will must be created voluntarily without undue influence, fraud, or coercion from others. Most states require the will to be in writing and signed by the testator, often at the end, to prove intent.
It's important to note that some states don't recognize certain will types. Holographic wills, for example, are only valid in about half of U.S. states, and nuncupative wills face even more restrictions. Before creating any will, research your state's specific requirements or consult with an estate planning attorney to ensure your document will hold up in court.
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)
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 the various 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 are the common mistakes to avoid when creating a will?
Creating a will is an important step, but errors in the process can lead to legal challenges, family disputes, and unintended consequences. Understanding the most common mistakes can help you create a document that truly protects your loved ones:
- Not having a will. The biggest mistake is not having a will at all. Without one, your state's intestacy laws determine who inherits your assets—and that distribution may not align with your wishes. A surviving spouse might receive less than you intended, or estranged relatives might inherit when you'd prefer your assets go elsewhere.
- Failing to update a will. Major life events—marriage, divorce, births, deaths, or significant changes in assets—should trigger a will review. Outdated wills can result in ex-spouses inheriting property, deceased individuals named as executors, or new children inadvertently excluded from inheritance.
- Executing the will improperly. Failing to meet your state's witness or notarization requirements can invalidate the entire document.
- Naming only one executor. Without a backup, your estate may face delays if your chosen executor is unable or unwilling to serve.
- Mismatching beneficiary designations. Retirement accounts and life insurance policies pass directly to named beneficiaries, potentially contradicting your will's instructions.
- Using vague or ambiguous language. Phrases like "divide my assets fairly" invite interpretation and conflict—be specific about who gets what.
- Forgetting digital assets. Online accounts, cryptocurrency, and digital files need to be addressed with clear instructions and access information.
- Not telling anyone where the will is. If your executor can't locate the document, it's as if it doesn't exist.
Taking time to address these potential pitfalls during the estate planning process can spare your family significant stress, expense, and conflict after your passing.
Some best practices for leaving real estate to beneficiaries
Real estate is often a person's most valuable asset, so it's important to consider the best approach for passing property to your heirs. While you can leave a house through a traditional will, several alternatives may better serve your goals:
- Using transfer-on-death deeds. Transfer-on-death deeds—available in many states—allow property to pass directly to named beneficiaries without going through probate.
- Placing a home in a living trust. Placing your home in a living trust keeps the transfer private and avoids court involvement. Some homeowners add children as joint tenants with rights of survivorship, though this approach has significant drawbacks, including potential gift tax implications and exposure to your children's creditors.
- Considering tax implications. Tax considerations also matter when deciding how to transfer real estate. Property inherited through a will receives a "stepped-up basis," meaning your heirs' cost basis resets to the home's value at your death. This can dramatically reduce capital gains taxes if they sell. Gifting property during your lifetime, by contrast, transfers your original basis and could result in substantial tax liability for your children.
- Planning for multiple heirs. If you're leaving a home to multiple children, plan for potential conflicts. Siblings may disagree about whether to sell, who pays for maintenance, or who gets to use the property. Consider options like giving the home to one child while leaving equivalent value in other assets to siblings, or including specific instructions about selling the property and dividing proceeds. Remember that mortgaged property passes with the debt still attached—your heirs inherit the loan obligation along with the house.
- Using a testamentary trust. For greater control over when and how children receive property, a testamentary trust will allows you to set conditions on inheritance. You might specify that a child must reach age 25 before receiving the property outright, or that the home must be used as a primary residence.
Wills vs. trusts: Understanding the difference
Many people wonder whether they need a will, a trust, or both. Understanding how these estate planning tools differ—and how they work together—can help you make informed decisions about protecting your assets and loved ones.
The most significant difference between wills and trusts involves probate. Wills must go through probate court, a public process that can take months or even years and involves court fees. Trusts, on the other hand, bypass probate entirely, allowing assets to transfer privately and often much faster.
Timing is another key distinction. A will only takes effect after you die, while a living trust can manage your assets if you become incapacitated during your lifetime. This makes trusts valuable for people concerned about potential disability or cognitive decline.
| Feature | Will | Trust |
| Probate required | Yes | No |
| Privacy | Public record | Private |
| Takes effect | At death | Can be immediate |
| Cost to create | Lower | Higher |
| Ongoing maintenance | Minimal | Requires funding |
Trusts generally cost more to establish but can save money long-term by avoiding probate fees. They also offer greater control over distribution timing—you can specify that beneficiaries receive assets at certain ages or upon meeting specific conditions.
Many estate plans benefit from having both documents. A will handles assets not placed in the trust, names guardians for minor children, and serves as a safety net for any property overlooked during trust funding. This is where pour-over wills become valuable—they direct any remaining assets into your trust upon death, ensuring everything is managed according to your wishes.
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.
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 because they fulfill basic estate planning needs—appointing an executor and distributing assets—while being easier to write and understand than other options.
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
We can help cover the essentials, plus healthcare and financial documents that go beyond naming 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 the testator's preference.
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.
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