Types of Wills: Which One is Right for You?
What is a Will?
A will is the legally-binding written, printed, or oratorially communicated intent regarding the disbursement of an individual’s estate after their death. There are many types of wills and depending on the resources used, the amount of them varies. We’re going to focus on ten types for practicality and general correctness. There are subtle differences between some that have been merged by means of shorthanding and for the sake of simplification that should remain separated for the sake of learning the deeply nuanced variations of laws between states. Wills and estate planning go hand-in-hand when responsibly life-planning for the future. If you’re looking for a state-specific Living Will form, make sure to visit US Legal Forms’ website.
Why Do I Need a Will?
When it comes to estates, personal effects, finances, and other considerations consisting of monetary, emotional, religious, and ancestral family value, it’s important that our wishes for what happens to these things after our death can be legally enforced, clearly understood, and the terms fulfilled without passing on debt or other harmful effects to our loved ones.
Without a will or trust, it’s possible for the state to decide the fate of your estate. This often leads to estate management and disbursement deemed unacceptable according to the decedent’s wishes, as well as their heirs. In addition to this, some heirs may make claims to various items, property, or finances, and if these claims are undisputed or unclearly denoted within a will, the items, property, or finances may wrongfully be disbursed to them; regardless of the decedent’s wishes. Additionally, without a health care directive, your family members may feel the need to file for a Conservatorship. Proper will planning ensures that your loved ones have all of the tools they need to care for you according to your wishes. And to create a will is to ensure that your estate is properly disbursed to those you love once you’re gone.
A few Hot-Topic Questions:
How does a will work after death?
The process begins with a process called probate. Probate is a process overseen by the probate court. If the decedent left behind a will, the court must determine its legal validity. After the individual’s liabilities have been handled, the estate and disbursement process is handed off to the court-appointed Personal Representative.
How to make your will legal?
In many states, after you’ve filled in your will with the information regarding the executor, guardian for your children, beneficiaries, asset details, and other key information, you must sign the will with no less than two witnesses, who should also sign a self-proving affidavit. The affidavit shows they are witnesses, and not required to come to court to testify, while also giving the court peace-of-mind regarding the will’s validity.
That said, as laws vary so much between states, it is recommended that you seek legal counsel to ensure that you are following the laws of your state to the letter to avoid any potential discrepancies or non-grandfathered statutes. A wills preparation is one of the most important steps, perhaps even more important than the will itself. Without proper execution, it may as well be a decorative poster.
Types of Wills
A simple will is, in effect, simple. It’s not beneficial for large or complex estates, as a simple will has relatively few clauses. Without clarification, the will may be bypassed, often unintentionally, in areas where clarity was not properly established.
A holographic will is a handwritten will, which is not seen as legally valid in almost half of states. Even where it is legally valid, there are some caveats you should investigate with a lawyer. However, if you’re discussing a will with a lawyer, you might as well create something more tangible with their help.
More than half of states allow for holographic wills, with their own variations and caveats. These states include:
- New Jersey
- North Carolina*
- North Dakota
- South Dakota
- West Virginia
*North Carolina requires the will to be found after the decedent’s death and that the holographic will was in a place of safekeeping.
In addition to states that allow holographic wills, there are states that honor legally valid holographic wills that were written in the states above (e.g. in the event the will was written prior to moving). These states include:
- New Mexico
- Rhode Island
- South Carolina
A nuncupative will is an orally given will and is often referred to as a deathbed will, yet there are some differences in some states. There are only a handful of states that accept a nuncupative will. Two examples of this are New York and North Carolina, and until recently, Texas.
In New York, the will must be witnessed by at least two individuals and transferred to a written form, and if the individual seeking to give such a will survives, it is thus invalid. Additionally, the will-maker must be a member of, a person who serves with, or a person who accompanies armed forces in an armed conflict; or a mariner while at sea. In the case of a service member, the will becomes invalid after their discharge from the armed forces; and in the case of a sailor, it becomes invalid after three years.
In North Carolina, the will must be given during the individual’s last illness or in “imminent peril of death”, whereafter the individual did not survive. Two witnesses must be present at the same time, and the individual must ask that they act as witnesses.
While very similar to a nuncupative will, a deathbed will, or death will, is only related to those on their deathbed, such as the elderly or terminally ill. Very few states accept deathbed wills. Additionally, if the individual survives the circumstances they gave their oral will but dies just a few days later due to different circumstances, such as a freak accident, the deathbed will given just days prior can be found invalid.
This type of will typically encompasses those typed up and printed by the individual, or in some cases hand-written, during a deathbed scenario, and is required to be signed in the presence of witnesses. Usually, an oratorially given deathbed will is only considered under extreme circumstances, yet, most states will not accept them. The hand-written variation of a deathbed will must be examined to show that the handwriting matches that of the individual.
Another concern by the courts is the mental stability of the individual giving such a will. If their mental well-being is questioned and found to be waning when they began to write a will, it is likely that it will be found unusable.
An online will is a will that was created with the help of online services. While there are variations of requirements from state to state, and some language may be unclear from certain providers, there has been a surge of states accepting these wills as common practice. And it makes sense as it reduces time, costs, and provides a broad standard by which individuals maintain control over their affairs.
If you’re looking to find out how to prepare a will online, you can find a plethora of examples of wills for your state here.
Shared will between spouses, with a contingency upon the death of both.
A joint will, also known as a family will, is a situation where two spouses share the same will. This is typically a situation where, upon the death of one spouse, the other is the primary beneficiary. This type of will also contains a contingency that becomes active upon the death of the second spouse that then disburses the estate to their heirs and other beneficiaries.
Keep in mind that if you plan to make a will of this type, you are mutually locked in should either of you fall ill or have an accident. The assets you wish to be passed down upon your death may remain entangled with your spouse until their death. This can cause some distress.
While the joint will is very useful for a married couple, mirror wills resolve some concerns that can arise from a joint will’s rigid nature. The mirror will is a set of two wills that are nearly identical, wherein both spouses leave most of their estate to the other spouse. Mirror wills are not limited to married couples, this can also be implemented between friends sharing property, business partners, siblings, and more.
A pour-over will is one where the remaining assets leftover from the probate process will be automatically transferred to an already established trust when they die.
A last will and testament is the directive in which the estate will be handled and disbursed upon the individual’s death. This type of will’s complexity is nearly proportional to the complexity of the individual’s relationships and the complexity of their estate. There are a number of clauses, and it is possible to create the terms for the creation of a new organization or trust within a last will.
For users taking advantage of their US Legal Forms Premium subscription, there’s a unique feature called Completion Services. This is a special opportunity for hands on help with filling out your last will and testament.
A testamentary trust will is a will where, once the individual has died, a trust is formed as per the terms defined within their last will and testament. The trust is created after probate has been completed. The primary difference between a living trust vs. will created trust is that a testamentary trust (in almost all cases) cannot be altered once the person has passed, regardless of the executor’s wishes, or those of the beneficiaries.
While the difference between trust and will may seem a little confusing, you can think of both like the lottery winner’s choice to receive one large sum payment or recurring payments over a long period of time; a trust is a long-term solution for the disbursement of funds akin to an allowance or stipend, while items disbursed through a will happen all at once.
A living will is also known as a Healthcare Directive which details the desired treatment of the individual once they have become seriously ill and either incapacitated or mentally incapable of making sound decisions regarding their welfare. These often deal with the desired use of life-support and life-sustaining procedures after incapacitation.
While navigating through the US Legal Forms library, you’ll find an abundance of forms related to living wills. For a streamlined experience, consider using the Completion Services feature or downloading the Personal Planning Package of forms or the Power of Attorney and Living Will / Health Care Directive.
Do I Need a Lawyer for a Will?
Wills and estates are the bread and butter of life-planning. That said, estate disbursement is no simple task; it is rightfully up to the individual to decide what’s fair for their heirs and beneficiaries, as well as to decide if their loved ones will be responsible with the estate in the long term.
Because of the gravity of such decisions, and the gravity of the potential ramifications of improper will creation, our recommendation is to seek legal counsel. While you do not need a lawyer to create, manage, and finalize a will, there are many nuances in the law that may make some clauses impossible to implement and that can potentially invalidate the entire document.
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