A will is a legal document in which a person, known as the testator, sets forth his or her wishes on how to distribute an estate’s assets, pay debts, care for any minor children, donate to charity and perhaps other issues after the individual dies. It is a crucial part of any estate plan. The testator appoints one or more executors to administer the estate and names guardians for minor children in a will. A will also might create one or more trusts and name the trustees.
Dying without a valid will is called dying intestate. Dying intestate can be more expensive than preparing a will and estate plan, because state courts and lawyers are likely to be more involved.
By drafting a will, the testator can distribute the estate how he or she wants. In addition, the testator can determine whether someone inherits property outright or through a trust. The testator also can direct that part of the estate be donated to charity. In addition, when there is no will a court appoints the executor and guardians of minor children and makes other decisions the deceased could have made in a will.
There is one type of will that is used most often, but there are other types of wills that can be used in appropriate circumstances.
The most common will is sometimes also called the testamentary will. This is a formal written will, often prepared by or with the assistance of an attorney, that meets all the formal requirements of state law. It is written, and it is signed by the testator in the presence of witnesses. Most states require two witnesses, but some require more. The signatures also might have to be notarized.
One advantage of a testamentary will is that it is less likely to be successfully challenged by an unhappy beneficiary or presumed beneficiary. By carefully meeting the law’s requirements for a valid will, the testator makes it unlikely a challenge will succeed.
Another advantage of the standard testamentary will is that the testator’s wishes are likely to be clear. Other types of wills might be incomplete or easy to misunderstand.
A holographic will is one that is written and signed by the testator. It usually is handwritten but doesn’t have to be. There are no witnesses to the document and no notarization of the signature.
Many states no longer accept a holographic will as valid or accept it only under limited circumstances. A holographic will should be considered only when the testator believes it is urgent that the document is prepared quickly, such as when the testator’s death is likely imminent and there are no witnesses available. Some states that do accept holographic wills require proof that the testator actually wrote it and had testamentary capacity. At times, this can be hard to prove in probate court.
From the points above, a holographic will is more likely to be challenged, especially by anyone who doesn’t like its contents. It is also easier for a challenge to be successful.
Just as the name implies, an oral will involves the testator speaking his or her last wishes to one or more witnesses. Most states don’t recognize oral wills or will accept it only in deathbed situations. There often is no written record, and if there is one, it wasn’t prepared by the testator.
These types of wills are often confused and can be difficult to distinguish. For this and other reasons, they aren’t recommended.
Married couples are those most likely to try to use one of these types of wills, often to save money.
A joint will generally is regarded as a single document created by two parties, usually spouses, who leave their assets to each other. The testators agree that the surviving testator will inherit the entire estate of the other spouse.
A joint will cannot be changed or revoked without the consent of both testators. Therefore, after the death of one testator, the other testator cannot change the terms of the will. This constraint is mainly to prevent the surviving testator from changing beneficiaries when the two parties have children.
Mutual wills are two or more separate documents that are mutually binding on the parties. The surviving party is bound by the terms after the other party or parties pass away. Changes can be made only with the consent of all parties.
Reciprocal wills are two documents written by two parties, each testator naming the other as the beneficiary of the estate upon death. A reciprocal will of a surviving testator can be changed following the death of the other testator. Reciprocal wills often are used by married couples, especially those with minor children.
Valuable contributions to this summary of “What are the Four Basic Types of Wills?” were made by Bob Carlson, editor of the Retirement Watch financial advisory service and chairman of the Board of Trustees of Virginia’s Fairfax County Employees’ Retirement System with more than $4 billion in assets.
Katie Kao is an editorial intern with Eagle Financial Publications.