What type of will do you need?

Everyone can benefit from a will tailored to their personal circumstances.

Derek Silva

Derek Silva

Published November 10, 2020

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KEY TAKEAWAYS

  • Most wills are legal as long as they follow your state’s rules, like including the necessary language and getting it witnessed

  • Any will that isn’t typed with a handwritten signature could pose challenges depending on the law in your state

A last will and testament, commonly just called a will, is a legal document that states who should receive your assets after you die. Your will should also be tailored to your personal situation, taking into account what kind of assets you’re passing on and who you want to receive them. Without a will, your money, property, and other assets will be distributed by a local court according to your state’s intestacy laws.

Everyone can benefit from a well-made will. Even if you don’t have much to pass on or if you just want to leave everything to one person, a will can lay out a clear plan for your family and beneficiaries. If you have minor children, a will also lets you name a guardian for them.

You can create a will yourself, but you may want to use a digital service or talk with a lawyer to ensure your will is legal and comprehensive. A valid will generally needs a declaration of testamentary capacity, your handwritten signature, and two witnesses present when you sign. Notarization may also be helpful. You can learn more in our breakdown of the requirements for a valid will.

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13 common types of wills

A standard will is enough for many people, but there are many ways to adjust the contents of a will to better cover your specific needs and wishes. Below we discuss the following 13 common types of wills:

  • Attested wills
  • Deathbed wills
  • Holographic wills (handwritten wills)
  • Joint wills
  • Living wills (not actually a last will and testament)
  • Mutual wills
  • Nuncupative wills (oral wills)
  • Online wills
  • Pour-over wills (used with a trust)
  • Reciprocal wills (also called mirror wills)
  • Statutory wills
  • Testamentary trust wills
  • Video wills

Attested will

Any will that has been witnessed when the testator signed it is considered an attested will. Witnesses are important because they can later attest in court to the fact that someone signed their will of their own power and without being coerced to do so. Most wills are attested wills and failing to have witnesses will make a will invalid in most states.

Deathbed will

A deathbed will is one that’s created while the testator is under imminent peril of death — an illness, injury, or other dire circumstance that results in the person’s death. Deathbed wills can be just as valid as any other will, as long as they contain the necessary components. A deathbed will may be handwritten, typed, or spoken out loud, but some states have stricter rules around when a deathbed will is valid. Oral wills (officially called nuncupative wills) may face additional restrictions.

Holographic will

A handwritten will is called a holographic will. States usually have different witnessing procedures for handwritten wills and more than a dozen states do not accept holographic wills. If your state allows holographic wills, it's important to follow all of its requirements for a valid will.

See which states accept holographic wills.

Joint wills

A joint will is a single document that covers two individuals, usually spouses. With a joint will, the spouses name each other as the beneficiaries, so that the surviving spouse owns the entire estate after the other spouse dies. Then there is a contingent beneficiary (or multiple) who will receive the estate after the second spouse dies.

Not all states recognize joint wills and they can pose challenges for a surviving testator because the terms of the will can’t be changed once one spouse dies. For example, if the ultimate beneficiaries become unsuitable — like if you want to leave money to someone but they die before the second spouse does — the surviving spouse cannot change the beneficiary to a living person and a probate court would need to decide who receives the estate.

As an alternative to joint wills, you may want to consider reciprocal wills (explained later).

Living will

Also called an advance directive, a living will isn’t technically a last will and testament. It’s a nonbinding document you can write to specify the medical care you want to receive should you become incapacitated or unable to communicate your wishes. This is one of the most common estate planning documents and it can prevent your loved ones from having to make difficult healthcare decisions themselves should you get sick. Living wills can work well in conjunction with a durable power of attorney, a document that grants someone the legal right to make healthcare or financial decisions when you’re incapacitated.

Mutual will

To create mutual wills, two individuals (usually spouses) create their own wills. Then there is a third document that each person signs to affirm that they will adhere to the terms of their will if the other person dies first. This arrangement prevents a spouse from changing their will after receiving full control of the couple’s estate, so it may be a good option if you fear your spouse will otherwise go against your wishes. However, mutual wills don’t offer any flexibility should a surviving spouse need to change the terms of their will.

If you do expect someone to contest your will, consider meeting with an estate planning attorney for legal advice.

Mutual wills don’t need to be identical, but they can be. Since they’re similar in form to joint wills, the two types of wills are often lumped together. Both types have disadvantages, so you may also want to consider a reciprocal will.

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Nuncupative will (oral will)

A nuncupative will is an oral will: any will that is stated verbally instead of formally written down by the will’s creator. Like any written will, valid oral wills must contain certain language. Nuncupative wills are not valid in all states, though, and some states only allow them in very specific situations, like if you’re a member of the armed forces or under imminent peril of death.

Oral wills are best as a last resort because it’s difficult to prove their authenticity. It can also be easier for someone to challenge your will in court, potentially dragging out the probate process and costing your beneficiaries time and money.

Learn more about how to make oral wills.

Online will

Online wills aren’t technically a distinct type of will, but they are worth mentioning because they have become much more common in recent years. There are a number of apps (like the Policygenius app) and online services that allow you to create a will digitally instead of in-person with a lawyer. Online services generally cover most people’s needs, but they may not be able to handle certain complex or uncommon situations. Make sure the service you choose has been vetted by attorneys and covers wills for your state.

For more, try our guide to making a will online.

Pour-over will

Pour-over wills are useful if you have a trust. Trusts can only pass on assets you have specifically transferred into the trust, and a pour-over will allows you to transfer assets you may have forgotten to move into the trust. A pour-over will can work with a trust you created during your life or a testamentary trust (created through the will itself). You can also bequeath specific belongings to people, not just the trust, through a pour-over will.

If you’re considering a pour-over will, brush up on the basics of trusts.

Reciprocal will (mirror will)

Reciprocal wills can be a good alternative to joint wills for married couples. With a reciprocal will, each spouse creates their own will and designates the other spouse as their primary beneficiary. Then the wills name contingent beneficiaries who receive the estate after both spouses have died.

Since each spouse has their own will that they can change or replace, there is more flexibility than joint wills or mutual wills. For example, if a couple has multiple children and one falls on difficult financial times, a surviving spouse could change their will to give more of their inheritance to that child.

Reciprocal wills could pose a problem if you are afraid that your spouse will change their will and go against your wishes after you die. In that case, you may want to consider a trust, since it can give you more control over who receives your assets.

Create matching wills and estate plans with step-by-step guidance from the Policygenius app.

Statutory will

Statutory wills are simplified forms that allow someone to create a free will by filling in some blanks. A statutory will is created by a state legislature so that it’s available to residents who need a quick and simple will. Only a handful of states offer statutory wills and not everyone will want one because they’re not really designed to be personalized. For that reason, statutory wills are generally best if you cannot afford to make a will in any other way or if you find yourself in immediate need of a will (such as in an emergency). Before using a statutory will, read this article on getting a free will.

Testamentary trust will

A testamentary trust will is one that contains the language necessary to create a trust after you die. Trusts created through wills are called testamentary trusts. With this type of will, a trust is created and the appropriate assets are moved into it after your estate has gone through probate. A will that creates a testamentary trust does not avoid probate, so you shouldn’t use it if your primary goal is to avoid probate. However, a testamentary trust will may benefit you if you want more control than a will can offer over how, when, or why assets are disbursed to your beneficiaries.

Read more about testamentary trusts.

Video wills

A video will is a filmed document in which you dictate your will. If you create a video will without having a physical will, you're likely to face the same issues you would face with any oral will (as explained earlier in the nuncupative will section). It’s best to always have a written will document that has been properly signed and witnessed.

However, recording a video of you signing your will or of you reading your will out loud may be beneficial. This type of video could make it harder for people to contest your will, with the video serving as proof that you understood what you were doing when you signed the will and that you signed it of your own volition. Video wills are not valid in every state and should only be used as a supplemental document.

Learn how to make a will in your state.

Personal Finance Expert

Derek Silva

Personal Finance Expert

Derek is a tax expert at Policygenius in New York City. He has written about multiple personal finance topics in the past, and his work has been covered by Yahoo Finance, MSN, Business Insider and CNBC.

Policygenius’ editorial content is not written by an insurance agent. It’s intended for informational purposes and should not be considered legal or financial advice. Consult a professional to learn what financial products are right for you.

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