While it may look easy in movies, creating a last will in real life is more complex than just jotting down your final wishes on a piece of paper.
If you want to be sure that your surviving spouse and children get their fair share of your personal property while also protecting your family from fighting over your last wishes, picking the right type of last will for yourself is pivotal.
Read on to learn about the different kinds of will you can use to ensure your assets and dependents are cared for after your death.
Types of Wills: Flowchart Quiz
Use our flowchart quiz to help you identify the best type of will for your needs. After completing the quiz, explore detailed information on each will type through the links provided, ensuring you make an informed decision tailored to your situation.
The Four Basic Types of Will
The four basic types of wills are the most common types used in estate planning.
Good for: Individuals whose estates are straightforward and valued under the estate tax threshold
A simple will outlines your wishes regarding how your property and affairs should be dealt with when you pass away. It should contain the essential elements of a last will, including:
- Appointing an executor to facilitate the transfer of your assets;
- Naming your assets and beneficiaries (to whom you wish to leave your assets);
- Designating a guardian to ensure your dependents are looked after;
- Signature of the testator (will creator);
- Signatures of witnesses or a notary public, depending on your state laws.
A simple will isn’t as complex as other types of wills. You can save time and money by using an online template that aligns with your state’s laws without the help of an attorney.
Because of their simplicity, however, simple wills fall short in complex situations. For those who want to control property distribution post-death or need to provide for a child with special needs, a simple will may not do the trick.
Additionally, simple wills (like most types of wills) do not help you avoid the probate process, potentially burdening your beneficiaries with extra time and financial costs.
Testamentary Trust Will
Good for: Ongoing management and protection of assets for beneficiaries (e.g. minors)
In a testamentary trust will, a testamentary trust is created within the will itself. The structure allows the trust to be established immediately after the estate owner’s death as soon as the probate court verifies that the document is a valid will.
After the trust is established, the trustee has the power to manage the assets on behalf of the beneficiaries. Because of this, testamentary trust wills are particularly beneficial for those needing long-term care for beneficiaries, such as minors or individuals who might not be ready for immediate inheritance.
However, unlike other trusts, testamentary trusts don’t bypass the probate process. This means the assets in the trust will go through probate, becoming part of the public record and potentially incurring substantial court fees. Beneficiaries may also face delays in accessing their assets.
► READ MORE: Living Trust vs Will: What’s the Difference?
Good for: Married couples who share assets and beneficiaries
A joint will is a legal document shared between two or more individuals, often married couples, combining their wills into one last will.
Joint wills are particularly popular among couples with shared assets and beneficiaries, functioning as a unified statement of how they want their assets distributed after death. Most of the time, these wills leave all of the property to the surviving partner or spouse if one spouse dies first.
Joint wills do not allow the surviving partner to make changes after the death of the first partner, even if they remarry, have additional children, or need to sell the property.
This type of will can work quite well if both parties agree completely about property distribution. It also works well if the estate is simple. However, if one of the partners dies first and the other wants to remarry or make changes, the surviving partner is stuck. The inflexibility of this type of will is a major drawback compared to couples making separate wills.
Good for: Individuals who have specific preferences regarding life-sustaining treatment near the end of life
A living will isn’t really a type of last will that distributes assets or property. Instead, it activates when you’re terminally ill and unable to communicate, guiding medical professionals on your treatment preferences, including life-sustaining measures and pain management.
Unlike a last will, which only takes effect after your death to distribute assets and manage affairs, a living will operates while you’re still alive, ensuring your healthcare choices are respected during critical health crises. It requires a deep understanding of personal values regarding medical care.
► READ MORE: Living Will vs Will: What’s The Difference?
Other Common Types of Will
While the first four types of wills are the most common, there are other kinds of last wills that can be effective in your estate plan.
Good for: Individuals with a living trust
A pour-over will is a special type of will designed to work in conjunction with a living trust. It acts as a safety net by transferring any assets not already in your trust at the time of your death into the trust. This ensures that all your assets are eventually managed according to the trust’s terms, offering simplicity and clarity in estate management.
One major advantage of a pour-over will is its role in maintaining privacy, as trusts are not public records. This means the details of your estate remain private, unlike traditional wills. Furthermore, pour-over wills can be cost-effective since they handle any residual assets that weren’t transferred to the trust during your lifetime.
However, the primary downside of a pour-over will is that (like all last wills) it does not circumvent the probate process. Assets passing through it must undergo probate before they can be distributed by the trust, potentially prolonging the trust’s administration and adding to the estate’s expenses.
Good for: Those with simple estates who desire to handwrite their will
Holographic wills are handwritten wills penned and signed by the testator without the need for formal witnessing. It bypasses the usual requirements of witnessed and attested wills.
The validity of holographic wills varies significantly across states. While some states do not acknowledge them, some recognize them under specific conditions. For instance, Texas mandates the entire will to be in the testator’s handwriting, whereas Utah requires only material portions to be handwritten.
Holographic wills can be a quick, cost-effective method to state your last wishes, particularly in urgent situations. However, they often face challenges in probate due to their informal nature, making them susceptible to disputes and questions about authenticity. They can easily be contested, especially if the handwriting is unclear or the testator’s intent isn’t evident.
States that recognize holographic wills
Alaska, Arizona, Arkansas, California, Colorado, Hawaii, Idaho, Kentucky, Maine, Michigan, Mississippi, Montana, Nebraska, Nevada, New Jersey, North Carolina, North Dakota, Oklahoma, Pennsylvania, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming.
Good for: Emergencies that urge individuals to make an oral will
A nuncupative will, commonly known as an oral or verbal will, is declared by the testator verbally rather than written down. Typically made in urgent situations like a deathbed, these wills are recognized only in a limited number of states and under specific conditions.
For instance, New York accepts them from armed forces members in active service, while North Carolina validates them if the testator is in imminent peril of death, both requiring witness corroboration.
The validity of nuncupative wills is often questionable. Most states don’t recognize them, and even where they are accepted, they come with stringent requirements, such as needing for multiple witnesses to validate the testator’s mental capacity and prompt documentation of the testator’s words. These wills are prone to challenges in court due to their informal nature and difficulty verifying the testator’s intentions and mental state.
Additionally, any previously executed written will usually takes precedence over an oral will. Due to their precarious legal standing and the high risk of misinterpretation or disputes, estate attorneys typically advise against relying on nuncupative wills for estate planning.
Good for: Last-minute estate decisions close to the end of life
A deathbed will is a will made and signed by someone facing imminent death. Despite the urgency and less-than-ideal circumstances, a deathbed will can be as valid and binding as any other will, provided it meets the legal formalities of the state.
Unlike nuncupative wills, which are oral and accepted in very limited situations, deathbed wills are written and generally require witnessing.
The main advantage of a deathbed will is that it allows a person who may not have made a will earlier to express their final wishes regarding the distribution of their assets. However, the validity of these wills often hinges on whether the testator had the mental capacity to make such decisions and if beneficiaries exerted undue influence.
The hurried nature of these wills, coupled with the testator’s health, can lead to challenges in court, particularly if substantial changes are made compared to any previous will. Witnesses are crucial in affirming the testator’s clarity of mind and intention.
In emergencies, a deathbed will is better than no will, but it’s prone to disputes and may not capture the testator’s well-considered intentions.
Good for: Couples with similar or identical wishes for asset distribution
Mirror wills (or reciprocal wills) are created by couples, often married, where each partner’s will reflects the other’s in terms of asset distribution. In these wills, typically, one partner leaves everything to the other, and upon the death of the surviving partner, the assets then go to their children or designated beneficiaries.
Unlike joint wills, which are a single document binding both parties, mirror wills are identical wills independent of each other. This means either partner can alter their will without the consent of the other, offering more flexibility than joint wills.
The primary advantage of mirror wills lies in their mutual assurance. It ensures that partners are taken care of after one’s passing and then the estate is passed to their children or chosen heirs.
However, since they are separate documents, a surviving partner may change their will after the death of the other, potentially diverging from originally agreed-upon plans. This flexibility, while beneficial in adapting to changing circumstances, requires mutual trust as it can lead to complications if the surviving partner remarries or wishes to alter the distribution of the estate.
Good for: Committed couples who want a binding agreement
Mutual wills, distinct from mirror and joint wills, are separate but similar wills created by individuals, often spouses, with an embedded agreement preventing either party from altering their will after the other’s death.
This agreement, forming a binding contract, protects the interests of specified beneficiaries. Particularly useful in second marriages, mutual wills safeguard children from previous relationships by ensuring the surviving spouse does not disinherit them.
While offering security for beneficiaries, mutual wills may pose challenges due to their rigidity, potentially creating conflicts if the surviving spouse’s circumstances change, such as through remarriage.
Couples should carefully consider mutual wills, weighing their commitment against potential future changes in life circumstances.
Good for: Tech-savvy individuals comfortable with creating and storing their wills digitally
E-wills, or electronic wills, are wills created, signed, and stored entirely digitally. They use electronic signatures and can be transmitted and stored online, making the estate planning process more accessible and convenient.
While e-wills offer ease and flexibility in estate planning, their legal acceptance varies across states. Nevada, Indiana, Arizona, Florida, Illinois, and Maryland have each enacted their own e-wills statutes. Additionally, Colorado, Utah, North Dakota, Washington, Washington D.C., Idaho, and Minnesota have adopted the Uniform Electronic Wills Act.
The acceptance and specific regulations for e-wills, such as remote witnessing and requirements for self-proving, vary among these states. However, challenges remain, including questions of authenticity, potential for fraud, and technological obsolescence.
Good for: Individuals with simple estates looking for a standardized, legally-formulated will
Statutory wills are legal documents formulated by state legislatures and officially incorporated into state statutes. They are an appealing, cost-free option for those with simple estates, ensuring basic estate plans are in place to guide beneficiaries through probate.
Statutory wills are ideal for straightforward situations with simple estates. States like California, Maine, Michigan, New Mexico, and Wisconsin provide statutory will forms. They may not be the best choice for everyone, especially those whose estate planning needs extend beyond basic provisions.
What’s the Best Type of Will for You?
The best type of will for you is the type of will that will protect your assets and your beneficiaries. Most wills have both benefits and drawbacks to consider. Determine your goals first, then choose the type of will that meets those goals best.
Also, make sure you settle on just one will. Having other wills posted in your name creates confusion and increases the chances that your assets will end up in probate.
What do You NOT Mind Being Public Information?
First, consider how much privacy you want for yourself and your beneficiaries. Most types of wills will go through the probate court process, and that puts them in the public record. Trust assets, however, may not.
Do/Will You Have a Trust?
Next, consider whether or not you will have a trust in place. Even if you don’t have one now, you may want to get one in the future. Either way, if you have a trust or plan to create one, the different types of wills you can use will change.
Not all wills work well with a trust, but some, like a pour-over will, are a great option to pair with a trust. Don’t forget to think about living trust and medical powers of attorneys, and make sure your will also aligns with those.
What Does Your Estate Look Like?
Another factor to consider is the size and scope of your estate. What does your estate look like in terms of assets and their complexity? A simple will might be inadequate for larger estates or those with intricate asset configurations.
Similarly, if you have children (especially minor children), you are going to want a will that will protect them and ensure your assets remain in place until they are old enough to receive their inheritance.
How’s Your Family Dynamics?
One of the reasons why wills are a pivotal part of estate planning is that they outline the person’s wishes so their family members do not fight over assets. Some types of wills and estate planning documents also dictate the financial and medical powers of attorney, so there is less bickering.
If your family’s dynamics leave you to think that there may be some fighting about your estate, choose a last will and testament or trust form that is less likely to be contested. Strained family dynamics are not the best place for deathbed wills, oral wills, or nuncupative wills that can be controversial.
In addition, consider if you have children from multiple marriages or specific inheritance needs related to blended families. This can guide decisions related to testamentary trusts or mirror wills.
Will You Have Any Last-Minute Changes?
Before you finalize your will, consider whether you anticipate having any last-minute changes to your ideas or your estate.
Some types of wills, like pour-over and holographic wills, work well for last-minute changes, while other types of wills, such as a joint will or mutual will, do not.
Make sure the will you choose will accommodate any changes you make throughout your lifetime or changes you might want on your deathbed.
Different types of wills have different purposes and offer different benefits. Regardless of the kind of last will you choose to create, having wills, living trusts, and living wills in place is the best way to protect your assets and your family.
Take some time to carefully think about which will fit your needs best, and create the documents you need today.