There are different TYPES of wills? Why, yes, yes there are. Welcome to an article dedicated to all of the different types of wills that you can get. From a basic will to a joint will to an e-will and everything in between, we’ve got you covered. Note that state laws differ, so not every state permits all of the wills listed below.
Below, you’ll learn which will best suits you and how to figure that out. And, remember, wills are estate planning tools that help divvy up your assets once your gone. So, without further ado, let’s explore the diverse world of wills, from the simple to the sophisticated.
Simple Wills
Think of a simple will as the “OG” of estate planning. It’s the straightforward document you think about when you think of estate planning. Sometimes called a “Last Will and Testament,” a simple will is generally easy to execute and perfect for individuals with uncomplicated estates. You use this type of will to clearly state who receives your assets – your home, car, personal belongings, and financial accounts – after you pass away. You can also include final arrangements for your death and guardianship.
Who are simple wills for? Wills can generally be useful for anyone, but you may also need additional documents like a trust to manage your assets in the best way. However, here are some examples of people who simple wills may be good for:
- Simple asset structure with clear beneficiaries: If you have a basic asset structure and want to give your assets to typical beneficiaries like spouses + children, then a simple will may be for you.
- People seeking an affordable solution: Simple wills are generally less expensive to create than more complex estate plans, including trusts and other documents, making them accessible to a wider range of people.
- People seeking a DIY approach: While consulting an attorney is always recommended, simple wills can be drafted without legal assistance using readily available templates or online services. Just make sure you follow your state law for proper will execution! .
Joint Wills
POV: You’re an older married couple (think: 80s/90s), and you have several shared children to who you want your assets to go to when you die. You both want to lock in your decision for asset distribution and allow the person who survives the other to reap the benefits of all of the assets until their eventual death. That’s the essence of a joint will. It’s a single document, signed by both parties, outlining how their combined assets will be distributed after both of their deaths.
When are joint wills appropriate? Firstly, joint wills are generally used by partners who have similar wishes for their assets and want to ensure those wishes are carried out together. Second, joint wills are typically best for people with simple estates and beneficiary structures. People with complex finances and/or unique beneficiaries may want to consider other options. Third, joint wills may be beneficial if a couple wants to make a set-in-stone deal on what should happen when each dies. A joint will can streamline the estate planning process and provide a sense of unity in decision-making.
Important considerations for joint wills:
- Irrevocability: In many jurisdictions, a joint will becomes irrevocable upon the death of one spouse, meaning the surviving spouse cannot change the terms. This ensures the original wishes of both partners are honored. This can be a hard stop for some couples.
- State laws: Regulations surrounding joint wills vary significantly from state to state. It’s crucial to understand the specific laws in your jurisdiction before opting for a joint will.
Pour-Over Wills
A pour-over will works in tandem with a trust, it’s not a standalone document. It is basically a catch-all provision in your will that says whatever you may have forgotten or will acquire in the future shall go into the trust and follow the trust’s conditions. This way, any assets not already held in the trust are “poured over” into it upon your death.
Why use a pour-over will? For starters, a pour-over will can act as a safety net. We’re all human. It’s easy to forget to transfer every single asset into a trust. A pour-over will acts as a catch-all, ensuring nothing is left behind. In addition, any assets acquired after the date you make your will and trust may also “pour-over” into the trust. Lastly, by directing all assets into the trust, you ensure they are managed under a unified set of instructions, simplifying administration and distribution.
Living Wills
While the wills we’ve discussed so far focus on your assets, a living will takes a different approach. It addresses your healthcare wishes, giving you a voice in medical decisions if you become incapacitated and unable to communicate.
You can see a sample form for a living will in this South Dakota statute, which provides you with a good idea on what a living will is. (S.D. Codified Laws § 34-12D-3).
Here is a general overview of what you might include in a living will:
- May name a person who can make decisions on your behalf.
- May include religious or spiritual requests.
- Option to refuse or request life-prolonging treatment if death is imminent or you are permanently unconscious.
- Option to write your own specific instructions.
- Option to refuse or request artificial nutrition and hydration if death is imminent or you are permanently unconscious.
- Option to express your desire for comfort care and pain relief, even if it may hasten your death.
Why is a living will important and who would want one? A living will is beneficial for any human being, as no one knows what the future may hold. Being able to make your own decisions even when you are unable to is powerful. Anyone can walk down the street today and become incapacitated and may want a say in what happens next. People with terminal illnesses or with upcoming risky surgeries may especially want to get a living will.
Other benefits of a living will:
- Respecting your autonomy: Makes sure your medical preferences are honored, even if you can’t express them yourself.
- Guiding loved ones: Provides clarity for your family and healthcare providers, relieving them of the burden of making difficult decisions during a stressful time.
- Preventing disputes: Reduces the potential for disagreements among family members about your care.
Testamentary Trust Will
A testamentary trust will (sometimes just referred to as a “testamentary trust”; “trust under a will” or “will trust”) is essentially a will with a built-in trust that springs to life after you pass away. This means your assets aren’t distributed directly to your beneficiaries like a normal will does; instead, they’re placed in a trust that’s managed according to your specific instructions. This offers greater control and protection than a standard will.
Who should get a testamentary trust will? Someone with more complex assets, more complex beneficiary structures, and/or someone with complex wishes for their asset distribution. However, this type of “will” is different from a regular trust in that it isn’t formed until you die, whereas other trusts start as soon as you execute them while you’re still alive.
Digital Wills/E-Wills
You can date online, you can get married online, and now you can get your will online. However, only a handful of states permit fully digital wills (those that are created, signed, and stored online). A digital will (also called an “e-will”) is literally just a simple will, but instead, it’s all online. You create it, sign it, and store it digitally.
E-wills make estate planning a breeze! If your state allows them, you can create your will online, either by yourself, with an attorney, or using an online service. You can even sign it digitally with special e-signing tools, and your witnesses can do the same – all online! The best part? You can keep the official version online, making it easy to access and update.
What can you include in a digital will? All the same stuff that you could in a regular will. There’s generally no restriction on what can go into a digital will. For example, what you want to do with your assets, final arrangements, and guardianship.
Choosing the right will for you
So… which one do you choose? An e-will? A simple will written on paper? A living will? Navigating the world of wills can seem daunting, but remember, the goal is to find the option that best suits your individual needs and circumstances. Also, you may require both a will AND a trust, not just a will.
Here are some key factors to consider in deciding which will to choose:
- State law: Understanding what type of wills your state allows for is the first step to this process. For example, only a handful of states permit e-wills.
- Complexity of your assets and beneficiaries: Do you have simple assets with easily divided assets, or do you have complex holdings, trusts, or business interests? This may be a case for a simple will. If you have more complexity in your situation, you may want to consider both a will and a trust.
- Do you share the same wishes as your spouse: Do you have the exact same wishes as your spouse and want to consider a joint will? Don’t forget that signing a joint will locks you into the terms once one person dies (in some states).
- Healthcare preferences: Do you want to express your wishes for medical treatment in a living will?
Consulting with an estate planning attorney is highly recommended, especially if you have any questions or concerns about which type of will is right for you. An attorney can help you understand the laws in your jurisdiction, draft a valid will that meets your specific needs, and ensure your wishes are carried out.
The bottom line on the different types of wills
Wills are not just documents; they are a reflection of your values, your legacy, your health, your religion/spirtuality, and your love for those you leave behind. By understanding the different types of wills available, you can make informed decisions, ensuring your final wishes are respected and your loved ones are cared for.
Nicole Sheehey is the Head of Legal Content at HelloPrenup, and an Illinois licensed attorney. She has a wealth of knowledge and experience when it comes to prenuptial agreements. Nicole has Juris Doctor from John Marshall Law School. She has a deep understanding of the legal and financial implications of prenuptial agreements, and enjoys writing and collaborating with other attorneys on the nuances of the law. Nicole is passionate about helping couples locate the information they need when it comes to prenuptial agreements. You can reach Nicole here: Nicole@Helloprenup.com
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