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. Before you prepare a will, you should understand that all wills must meet certain general requirements:
- You must be 18 years of age or an emancipated minor.
- 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).
- You must expressly state that this document is your will.
- You must sign and date the will.
- 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.
- 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.
- 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 types 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.
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.
A holographic will is one you prepare in your own handwriting. In some states, no witnesses are required. Holographic wills are recognized in about twenty states.
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.
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.
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.
An oral will, also called a noncupative will, is spoken, rather than written. Few states recognize this type of will except in emergency situations.
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.
A joint will is one that two people make together, each leaving all of their property and assets to the other. A joint will also stipulates how the assets will be distributed when the second person dies.
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.
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 is professionally prepared and individually designed for you.
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.