Everyone who engages in estate planning creates a will, also known as a last will and testament. But did you know that there are several different types of wills available to choose from?
How to create a will: general requirements
Before we review the different types of wills you can create, let’s discuss some of the universal requirements needed to make a valid will. Rules can vary by state, such as the need to notarize your will (insert hyperlink) to make it legally valid.
The following requirements apply to all wills, regardless of where you live.
- You must be of legal age (usually 18 or over).
- The document must clearly state its intention to function as your will.
- You have to be of sound mind when you create a will.
- Another person must not unduly influence you into signing a will.
- The will must contain your signature.
So, assuming that you’ve met the above requirements and are ready to create a will, it’s time to review the different options and decide what’s best for your specific situation. Be aware that there may be some overlap between the different types of wills.
The seven different types of wills
A simple will doesn’t have a standardized definition, and you might hear it referred to as a “standard” or “basic” will. Many estate attorneys define simple wills as a will without a testamentary trust — meaning there are no complex tax provisions or specific asset distribution provisions in the document.
For example, a simple will may leave a married person’s entire estate to their spouse. Or perhaps it will instruct that an estate is left equally to the testator’s children. A downside of simple wills is that they generally don’t account for “what ifs,” such as what happens to your estate if your beneficiaries predecease you.
Testamentary trust will
A testamentary trust will is what it sounds like — a will that includes one or more trusts. This type of will may contain language to the effect of, “I leave my estate to my spouse, in trust.” It may also include language that specifies who gets the income produced by the trust and under what circumstances.
For example, you may specify that your surviving spouse may take principal distributions from the trust for their health, education, maintenance, or support needs — referred to as HEMS in the estate planning world. A testamentary trust will may also specify that the trust principal and any accumulated income shall revert to the children when the surviving spouse dies.
Some states allow their residents to create a holographic will. This type of will is usually entirely in the testator's handwriting, and often the notary and witness requirements are less stringent. So, if you can create a handwritten will that’s legally valid for free, you might be wondering: What’s the catch?
The main drawback of holographic wills is that they tend to be more ambiguous than other types of wills. This can cause conflict between your heirs as they may have different opinions regarding the provisions in your will. If you want to avoid any confusion regarding your final wishes, you may want to consider a more standardized will that leaves less room for interpretation.
A pour-over will is a type of will to ensure that any assets in your name when you pass away transfer or “pour over” at your death into a previously established revocable living trust.
Virtually everyone who has a living trust needs a pour-over will to direct any personally owned assets into their trust upon their death. It may be helpful to think of a pour-over will as a “safety net” — since it collects any property you forgot to transfer into your trust while you were still alive.
Reciprocal wills are commonly used by married couples with the same estate planning wishes. So each spouse’s wills, for example, may say, “I leave my estate to my spouse, and if my spouse predeceases me, I leave my estate to our children.” So, each spouse has their own will, but they are almost identical.
One of the newest wills to come on the market is the electronic will. These types of wills are currently only permitted in a handful of states — and allow the person creating the will to sign the document electronically.
Depending on the requirements in your state, the signing of your electronic will needs to be witnessed by 1-2 individuals. As determined by your state's laws, the witnesses will need to be physically or virtually present with you. Electronic wills will likely gain popularity as technology improves and becomes more and more essential to daily life.
A living will actually isn’t a will, but it’s so often confused for one that we thought we should include it. A living will is a statement of wishes regarding your medical care — specifically, the use of life-saving measures. For example, if you are in a vegetative state with no chance of recovery, would you want to remain on life support machines or have them withdrawn?
Your living will allows you to state your health-care decisions ahead of time and take the burden off your family. If you want to ensure your medical-related wishes are honored, it’s crucial to create a living will in addition to one of the other types of wills discussed above.
The bottom line
With several different wills to choose from, it’s crucial to compare your options to see what makes the most sense for your situation. For example, if you’re single or don’t have many assets, a simple will might be a good way to dip your toes into the world of estate planning.
On the other hand, if your circumstances are more complex, you may want to consider a pour-over will or a combination of the different wills mentioned above.