More on Wills
More on Wills
Everyone can benefit from a will tailored to their personal circumstances.
A last will and testament, commonly just called a will, is a legal document that states who should receive your assets after you die. Everyone can benefit from a well-made will and there are a few different types of wills to choose from. Some wills are straightforward and you can draw one up yourself, while other types of wills might be created by spouses as part of their estate plan. Certain wills are even created to work in conjunction with a trust.
Without a will, your money, property, and other assets will be distributed by a local court according to your state's intestacy laws. 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.
No matter what type of will you get, the will needs to follow your state’s rules
You can write a will on your own, use an online service, or hire an estate planning attorney
A living will is not a last will and testament
There are many different types of wills, which can be categorized based on what they achieve, who they’re for, and also how they are constructed. In order for any will to be valid, it generally needs a declaration of your intent and testamentary capacity, a handwritten signature, and two witnesses present when you sign the document. (You can learn more in our detailed breakdown of the requirements for a valid will.) Wills must typically be proven in court after you die during a process called probate.
You can write this type of will on your own without a lawyer. Your state legislature may even offer a free form that you can fill out (a statutory will), but it’s not designed to be personalized. For that reason, statutory wills are generally best if you can’t afford to make a will in any other way. Read more about free wills and whether you should get one.
These days you can also get online wills, which aren't technically a distinct type of will, but rather a will that is created through a digital service. Online wills are cost-effective and can be as valid as those created with in-person with an estate attorney . Make sure the service you choose has been vetted by attorneys and covers wills for your state.
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A joint will is a single document that covers two individuals, usually spouses, who name each other as the beneficiaries. Not all states recognize joint wills and they can pose challenges for a surviving spouse because the terms of the will can't be changed once the first spouse dies. For example, if you want to modify the terms of your joint will because the beneficiary, your son, has become a spendthrift, you won’t be able to without your spouse’s consent, which will be hard to obtain once they’ve passed.
As an alternative to joint wills, you may want to consider mirror wills (reciprocal wills). Each spouse creates their own mirror will and designates the other spouse as their primary beneficiary. Since each spouse has a separate will that they can change or replace, there is more flexibility than joint wills as part of their estate plan.
Related article: Learn what you should never put in a will.
In addition to bequeathing assets to specific people, this type of will allows you to transfer assets into your trust. A pour-over will can work with a trust you created during your life or one that you created through the will itself (a testamentary trust). Learn more about pour-over wills.
This type of will contains the language necessary to create a trust after you die. Trusts created through wills are called testamentary trusts and they can be helpful if you want control over when your beneficiaries receive your assets. For example, if you have a minor child you could write a will with instructions for a testamentary trust that only disburses assets to the child when they reach a certain age.
Like all wills, a will that establishes testamentary trust must be probated, so you shouldn't use it if your primary goal is to avoid probate. For that you must open a living trust.
Learn more about how trusts and wills work together.
Also called an advance directive, a living will isn't a last will and testament. It's a non-binding legal 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 health care decisions themselves should you get sick. Living wills must be notarized and they can work well in conjunction with a durable power of attorney, a document that grants someone the legal right to make health care or financial decisions when you're incapacitated.
Here are a few more different types of wills, which are distinguished based on how they’re constructed — written by hand, spoken out loud, or recorded. These wills may have different witnessing procedures and are not available in every state.
A handwritten will is called a holographic will. This type of will must be written in the testator’s handwriting and may not require any witness signatures — but it depends on the state. Many states actually won’t accept handwritten wills unless they are properly witnessed like a standard typed will, except under a few circumstances — like if the testator is at sea. A holographic will may face more scrutiny during probate, so it’s best to avoid it if you can.
See which states accept holographic wills.
A nuncupative will is an oral will: any will that is stated verbally instead of formally written down by the testator. Just like any written will, valid oral wills must contain certain language. Nuncupative wills are not valid in all states and some states only allow them in very specific situations, like if you’re under imminent peril of death — an illness, injury, or other dire circumstance that results in death — which is why an oral is sometimes called a deathbed will.
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 or contest the will in court, potentially dragging out the probate process and costing your beneficiaries time and money.
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. It's best to always have a written will document that has been properly signed and witnessed. Video wills are not valid in every state and should only be used as a supplemental document.
A video will is separate from a video one might make to prove the authenticity of a written will, such as recording a video of you signing your will or of you reading your will out loud. 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.
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