A will is an important estate planning document that allows you to determine what happens to your money and property after your death. But there isn’t just one kind of document you can create—there are many.
This guide explains different types of wills, how each type works and the pros and cons of each.
What Is a Will?
A last will and testament is a document that you create that gives you control over your legacy. You leave instructions for what should happen to the things you own when you are gone. You can also address other issues as well, such as who should serve as a guardian of your minor children if you pass away before they reach adulthood.
If you do not have a will, you die intestate. This means that unless you have arranged for the transfer of assets using other estate planning tools, such as trusts, state laws determine how your assets are distributed.
Types of Wills
Here are some of the most common types of wills that may be included in your estate plan.
Living Will
This document actually serves a very different purpose than most wills.
It is intended to provide instructions for the kinds of medical care you accept or decline if you are incapacitated. You can use it to provide instructions on what extraordinary measures you want used to save your life under specific circumstances.
Typically, in this document you address issues such as whether CPR can be used to resuscitate you or whether you want a feeding tube, artificial nutrition or a ventilator to keep you alive.
Formal Will
This is the standard document most people use when providing instructions for after their death. It is typed and signed in front of multiple witnesses. You can create a formal will yourself from scratch, make one using an online template or create one with the help of an attorney.
Simple Will
This is typically a formal will that lays out the basics of who will inherit but does not contain more complexities. Generally, you name an executor who oversees the probate process and manages assets until they are transferred to beneficiaries—a beneficiary is someone who inherits property after you die.
Testamentary Trust Will
A testamentary trust will creates a special type of trust that is established after death. The person making the will names a trustee and beneficiaries and provides instructions on how the trustee should use trust assets and when and how they should be transferred to beneficiaries.
This is often done in circumstances where someone leaves money or property to a minor child and wants to appoint a trustee to manage those assets on their behalf and ensure the funds are used appropriately.
Holographic Will
Holographic wills are handwritten wills with no witness signatures. The creator writes and signs a document providing instructions for the distribution of assets after death.
While not accepted in all states, holographic wills can be considered legally valid in many jurisdictions as long as they meet certain requirements such as being in the handwriting of the deceased, are created without fraud or duress, are legible and provide clear instructions. The creator must also be of sound mind at the time the document is produced.
Joint Will
This is made by two or more people who wish to merge their instructions into a single document that details what they want to have happen after they pass.
Usually married couples make them, and they often specify that the first spouse who dies leaves all money and property to the other and then the property transfers to the couple’s children or grandchildren after the death of the last surviving spouse. Once the first spouse dies, the instructions can no longer be changed—they become irrevocable.
Which Type Is Right for You?
It is a good idea to have a living will to make sure your wishes are respected when it comes to quality versus quantity of life. And most people benefit from making a formal will, which could be simple or could be complex and create a testamentary trust.
Holographic and joint wills both have serious drawbacks.
In the case of a handwritten document, there is a high likelihood it could be challenged or determined not to be enforceable. In the case of joint instructions, they can impose too many restrictions on the surviving spouse as they become irrevocable after the first spouse dies. If the surviving spouse needs to sell a family home to secure medical care, for example, or wants to disinherit a child for some reason, it is difficult or even impossible to do so.
Getting Legal Help Identifying the Right Estate Planning Tools
Wills are just one of many estate planning documents you can use to help secure your future legacy. Consider speaking with an experienced estate planning attorney to find out what tools you can use to help provide for and protect your loved ones and ensure your wishes are carried out appropriately when you are gone.
Frequently Asked Questions (FAQs)
What type of wills are best?
Most people should have a living will and a formal last will and testament. The former provides instructions on what extraordinary medical interventions to utilize in case of incapacity and the latter provides instructions on what happens after death, including how property is distributed and who should serve as guardian of any minor children.
What is more powerful than a will?
Many people benefit from using a trust. Trusts allow assets to pass outside of probate. Depending on the type of trust used and whether it is revocable or irrevocable, trusts can also protect assets against creditor claims or other losses, help to avoid estate taxes and provide the creator more control over how money and property are managed after death.
Who is the best executor for your will?
The best executor is a trustworthy person who has the capacity to carry out requirements such as notifying creditors and potential heirs of a death, initiating the probate process and managing estate assets. Many people choose a spouse or a child to fulfill this role, but you can choose any adult who has the mental capacity and ability to carry out your wishes.
