A last will and testament is one of the most important estate planning documents you can prepare. Not only does it allow you to direct where your property will go upon your death, but it can also provide you great peace of mind during your lifetime, knowing that your affairs will be taken care of in the way you want.
Although state law varies regarding requirements, a will generally must be executed by someone over the age of majority who is of sound mind. This person is called the "testator." The testator chooses an executor to handle the distribution of the estate. The testator must also sign and date the document, typically in front of one or more witnesses, and the will may also need to be notarized.
Different types of wills serve different purposes, and the one you need depends on your specific circumstances.
Four Main Types of Wills
The four main types of wills are simple, testamentary trust, joint, and living. Other types of wills include holographic wills, which are handwritten, and oral wills, also called "nuncupative"—though they may not be valid in your state.
Your circumstances determine which is best for you. Here is some basic information to help you decide.
1. Simple Will
A simple will is the one most people associate with the word "will." Through a simple will, you can decide who will receive your assets and also name a guardian for any minor children. Writing a simple will can, indeed, be simple. Online will forms with a simple will format can provide an excellent framework, though you may wish to seek legal advice as well.
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 the trust. This is useful if you have beneficiaries who are minors or who you don't want to inherit your assets to handle on their own. Through this type of will, you can put assets in trust and place conditions on the inheritance, which may be gradual based on age or other factors.
3. Joint Will
A joint will is signed by two or more people as a separate will for each testator. Generally, a joint will or mirror will is executed by spouses in favor of the other spouse to inherit everything. The terms of joint wills—including executor, beneficiaries, and other provisions—cannot be changed even after the death of one of the testators. Because of this inflexibility, joint wills can become problematic for the surviving spouse, as their wishes may change.
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. In some states, an advance healthcare directive combines a living will and a healthcare power of attorney or proxy, so it is crucial for you to understand your state's laws on this issue.
Note that you can have more than one type of will at the same time and different wills can all be valid. A living will, for example, can legally co-exist with a simple will since they serve entirely different purposes.
The assistance of an experienced estate-planning attorney 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 huge difference for your loved ones later on.