Types of Wills: Introduction

A will is a written or oral communication by a person stating how they want their property disposed of at death.

What requirements must a will meet?

Before you prepare a will, which is a legal document, you should understand that all wills must meet certain general requirements:

1. You must be 18 years of age or an emancipated minor.
2. You must be of sound mind:
   a) Know what a will is and what it does;
   b) Understand the relationship between you and your immediate family members;
   c) Know what property you own;
   d) Understand who the people are to whom you are leaving your belongings (who your beneficiaries are).
3. You must expressly state that this document is your will.
4. You must sign and date the will.
5. You must have the will signed (attested) by at least two or three witnesses – the number of required witnesses depends on state law. In addition, many states require that the witnesses are not related to you and are not beneficiaries.
6. You must have substantive provisions that:
   a) Nominate a legal guardian for any minor children;
   b) List who inherits specific items;
   c) State what happens to remaining property (residue) not mentioned in the will.
7. You must appoint an executor who will be:
   a) Responsible for supervising the distribution of property;
   b) Responsible for paying all of your debts and taxes;

Several different kinds of wills are described below. Since states differ in the types of will used; check with an attorney to make sure the type of will you are making is accepted in your state if you are doing your own will.

What are the different types of wills?

Listed below are different types of wills a person could have.

Simple Will

A simple will is one that provides for the outright distribution of assets for an uncomplicated estate. You can buy an easy to fill out form for a simple will from a stationery store, or take one out of a book.

Holographic or Handwritten Will

A holographic or handwritten will is one you prepare in your own handwriting. In some states, no witnesses are required. Holographic wills are recognized in about twenty states.

Statutory Will

A statutory will is a “fill-in-the-blank”, “check the boxes” form that is easy to fill out, inexpensive to prepare, but very limited in its uses. Only a few states accept a statutory will.

Testamentary Trust Will

A testamentary trust will sets up one or more trusts for the distribution of part or all of one’s estate at the time of death.

Pour-Over Will

A pour-over will “pours over” property into a trust when you die. Property left through the will must go through probate before it is placed into the trust.

Spoken Will

An oral will, also called a nuncupative will, is spoken, rather than written. Few states recognize oral wills except in emergency situations.

Video Will

A video will is read in front of a video camera by the testator. Generally, a video will supplements a written copy of the will.

Joint Will

A joint will is one that two people make together, each leaving all of their property and assets to the other. Joint wills also stipulate how the assets will be distributed when the second person dies.

Self-Proving Will

A self-proving will, (or a self-proving affidavit attached to a will), must be notarized, and certifies that the witnesses and testator properly signed the will. This type of will makes it easy for the court to accept the document as the true will of the person who has died, serving as testimony, and avoids the delay and cost of locating witnesses at the time of probate.

Living Will

A living will bears no relation to a conventional will and is not used to leave property at death. A living will is a document that allows you to state what type of medical treatment you do or do not wish to receive should you be too ill or injured to communicate your wishes. It may also be referred to as an advance directive or a declaration.

A Will Prepared by an Attorney

A will prepared by an attorney is professionally prepared and individually designed for you.

Deathbed Will

If you are faced with imminent death, a deathbed will is often written. Though they are drawn up hastily, they are as legally binding as one prepared in advance, but relying on one to distribute your assets is risky since these types of wills are often contested.

Case Studies: Different Types of Wills

Case Study 1: Simple Will

John, a single individual with no dependents, wanted to ensure that his assets are distributed according to his wishes after his passing. He decided to create a simple will using a form he purchased from a stationery store. John carefully listed his assets, including his savings account, car, and personal belongings, and designated specific beneficiaries for each item. He also appointed an executor to oversee the distribution process.

Case Study 2: Holographic or Handwritten Will

Mary, a resident of a state that recognizes holographic wills, decided to create her will in her own handwriting. She carefully wrote down her wishes, including the distribution of her property, appointment of a guardian for her minor children, and specific instructions regarding her funeral arrangements.

As her state does not require witnesses for holographic wills, Mary ensured that her will was entirely in her own handwriting and signed and dated it.

Case Study 3: Testamentary Trust Will

Sarah, a wealthy individual with multiple assets and beneficiaries, wanted to ensure a structured distribution of her estate upon her death. To achieve this, she decided to create a testamentary trust will. Sarah worked closely with an estate planning attorney to establish one or more trusts within her will. She carefully outlined the beneficiaries, trustees, and specific instructions for managing and distributing the assets held within the trusts.

Case Study 4: Pour-Over Will

David, concerned about the probate process and wanting to streamline the transfer of his assets, chose to create a pour-over will. In his will, David designated a revocable living trust as the beneficiary of his assets. He specified that upon his death, his assets would “pour over” into the trust, which he had previously established.

By doing so, David aimed to avoid probate and ensure a smooth transition of his assets to his intended beneficiaries.

Case Study 5: Self-Proving Will

Jennifer wanted to ensure that her will would be accepted by the court without complications and delays. To achieve this, she included a self-proving affidavit along with her will. Jennifer and her witnesses visited a notary public who administered an oath and witnessed their signatures.

By attaching the notarized self-proving affidavit to her will, Jennifer aimed to provide clear and irrefutable evidence of the validity of her will at the time of her passing.

Case Study 6: Living Will

Mark, facing a terminal illness, decided to create a living will to express his medical treatment preferences. He worked closely with his healthcare provider and legal counsel to draft a document that clearly outlined his wishes in the event he became incapacitated and unable to communicate his healthcare decisions.

Mark specified his preferences regarding life-sustaining treatment, resuscitation, pain management, and organ donation.