Types of Wills

A will is a legal document that makes sure your wishes for leaving property to family, friends, or organizations are followed after your death. If you have a small amount of property and a simple family situation, you can probably make your own will using a state form or a trusted online program. You can also talk to an estate planning lawyer if you want help. No matter which option you choose, it helps to know about the different types of wills before you begin.

Before you start, remember that most wills must go through probate, which can take at least six months and cost your inheritors money. Typically, your beneficiaries will not receive anything until the probate process is complete. If you want to avoid probate, consider a living trust or explore other options.

This article first covers the most common types of wills, then explains other kinds of wills and related terms you might come across as you plan your estate.

Simple Will

A simple will is the legal document most people envision when it's time to make a will. It leaves basic instructions on what you want to have happen to your property after your death. It should also appoint an executor—that is, the person who will carry out your wishes and wrap up your final affairs. Finally, if you have young children, you can use a simple will to name a guardian to raise them if something happens to you.

It's usually fine to make a basic will if you're on the younger side (under 50), in good health, and don't expect to leave a multi-million dollar legacy that will be subject to estate taxes. On the other hand, if any of the following apply, you will need more than a simple will:

• You want to avoid probate to save your loved ones time and money
• You have a child with special needs that you wish to address in your estate plan.
• You have children from an earlier marriage, and you want to avoid conflict between them and your current spouse.
• You want to control what happens to property in other ways after your death—for example, you want to be sure some property is left for your grandchildren after your children die.
• You fear someone might contest your will.
• You expect to owe estate tax when you die, or when your spouse does.

Testamentary Trust Will

A testamentary trust is a trust that only starts after the person who created it, known as the grantor, dies. This kind of trust is usually set up in a will, often to provide for young children. If you add a trust to your will, it will not exist until after your death.

A testamentary trust used to leave money to children is sometimes referred to as a child’s trust. You can also use a testamentary trust, known as a pot trust, to leave property to children as a group. Children can’t receive substantial amounts of property directly; an adult must manage their inheritance. Creating a testamentary trust in a will allows you to leave a substantial gift to a minor and also name a trusted adult (called the trustee) to manage the property until the child reaches the age of majority, at which point they can receive it outright. You can establish this age when you make your testamentary trust.

Though leaving property to children through a testamentary trust is practical, it isn't the only way—for example, in most states, you can leave an inheritance under the Uniform Transfers to Minors Act instead. Alternatively, you can create a subtrust for your children when you create a living trust. Testamentary trusts don’t avoid probate proceedings, so it may be worth looking into living trust options if probate concerns you.

Joint Will or Mirror Image Will

A joint will is a single will signed by two people, usually a married couple. If you and your spouse agree on how to leave your property, a joint will might look like a simple solution. However, joint wills often cause problems, so most estate planning lawyers do not recommend them.

Usually, a joint will can’t be changed after the first spouse dies. This means the surviving spouse can’t update the will, even if they need to sell property or change who gets what. They also cannot change the executor or add or remove beneficiaries. Because of these issues, some states do not allow joint wills, and judges often try to split them into two separate documents.

You may also have heard about mirror image wills, also called reciprocal wills. Unlike joint wills, mirror image wills are two separate documents that spouses use to make identical plans. These can work better than joint wills unless the mirror wills contain language that forbids either spouse from revoking their individual will. In that case, mirror image wills face the same problems discussed above.

Instead of using joint wills or mirror wills with strict rules, it is usually better for each person to make their own will. This gives you more flexibility if things change. If your situation is simple, you can make separate wills without a lawyer. If you want restrictions after one of you dies, a trust might be a better choice. Consider speaking with an estate planning lawyer.

Living Will

This document, also called a health care directive or advance directive, is not related to the kind of will used to leave property after death. A living will lets you say what medical treatment you want or do not want if you are too sick or injured to make decisions. For example, you can use it to say whether you want life-sustaining treatment if you are near death from a serious illness. You can also include other instructions for your care and your wishes about organ donation.

Wills When You Have a Living Trust

Most people who make a living trust should also make a backup will to take care of things you can't do in your trust, like naming guardians for young children, naming an executor, and naming beneficiaries for any property that you don't put into your trust. In your backup will, you can name specific beneficiaries for your non-trust property, or you can make a pour-over will by naming your trust as the beneficiary of your non-trust property. This section discusses both types of will.

Backup will

When you create both a living trust and a backup will, it is important to consider how they work together. If your will and trust have different instructions, it can cause confusion for your heirs or even lead to disputes and lawsuits. Here are some key things to remember:

• Don't leave the same property in your living trust and will. Even if the property is going to the same beneficiary, put your instructions in just one place. If you transfer the property to your living trust and name a beneficiary in the trust document, that's all you need to do. Mentioning the property in the will raises the possibility of a probate proceeding.
• Don't leave the same property to different beneficiaries in your will and your living trust. This is an obvious setup for conflict.
• Don't name different people to be the executor of your will and successor trustee of your living trust. This is an especially bad idea if you think they might quarrel about how your affairs should be handled. There's one important exception: If you make a trust with your spouse, you may want to name your spouse as executor of your will, but not as successor trustee -- the successor trustee takes over only after both spouses have died.

Pour-Over Wills

Some lawyers advise people who create living trusts to also create a "pour-over" will, rather than a backup will. A pour-over will takes any property you haven't transferred to your living trust and, at your death, leaves it to the trust.

Pour-over wills (named so because everything is "poured over" from the will to your living trust) do not avoid probate. If the value of the property left through a pour-over will is small, however, some states exempt it from probate or offer streamlined probate procedures. This is true whether or not the will is a pour-over one.

If probate is required, a pour-over will actually has a disadvantage that standard wills don't: It forces the living trust to go on for months after your death, because the property left through the will must go through probate before it can be transferred to the trust. Usually, the property left in a living trust can be distributed to the beneficiaries (and the trust terminated) within a few weeks after the person's death.

A pour-over will can be useful if you set up a child's subtrust for a young beneficiary in your living trust. You may want any property that the child inherits through your will to be placed in the subtrust. Otherwise, you would create two trusts for the beneficiary: one in the will and one in your living trust.

Other Will Types

Holographic Will or Handwritten Will

About half the states recognize unwitnessed, handwritten wills—called holographic wills. But holographic wills are fraught with possible legal problems. Most obviously, after your death, it may be difficult to prove that your unwitnessed, handwritten document was actually written by you and that you intended it to be your will. If your state allows handwritten, unwitnessed wills, and you have no other choice but to make one, make sure you sign it.

Nuncupative Will or Oral Will

A nuncupative will is an oral will, sometimes referred to as a deathbed will. A few states recognize nuncupative wills under very limited conditions, usually when a member of the military is facing imminent death. It may be almost impossible to prove the authenticity of an oral will. Even in places where they are allowed, they must be made in front of witnesses who write down the wishes as soon as possible.

Electronic will

Electronic wills are made, signed, and witnessed electronically, so you do not need paper. Currently, only a few states permit electronic wills, but more are likely to follow. Until the laws are clearer and most states have rules for electronic wills, it is safest to make your will on paper. (That said, it's legal to make a will online that you print and complete. See below.)

Video will

You can’t create a valid will using only a video. To be legal, a will must be in writing and signed. In most states, it must also be dated and signed by two witnesses. Unless your video will has been transcribed, signed, and witnessed, it's unlikely to be legally enforceable.

That doesn’t mean there’s no place for video when making a will. A video can provide evidence that you knew what you were doing when you signed the will and weren't being manipulated. It can also provide comfort to your loved ones, for example, if you want to explain in more detail why you chose to leave your property as you did.

Online will

These days, there are numerous ways to create a will online, whether by using a fill-in-the-blank form found on the internet or an online program from a reputable company. Online wills are perfectly legal as long as they meet the requirements of your state. Generally, that means you must be an adult, have the mental capacity to make a will, and properly complete the document, including signing it and having it witnessed by the correct number of people.

What Type of Will Do You Need?

If you’ve familiarized yourself with the kinds of wills discussed above, you probably already have a good idea of the best type of will for you.

Is your situation very simple? A basic will made with an online program may be all you need.

Do you have young children? You may want to consider a testamentary trust or a more complex plan if they have special needs.

Do you have a living trust? A backup will may be best for you.

No matter what you decide, make sure to do your research. Find out more about the types of wills that interest you. When you make a will, check that it is legal and follows your state’s rules. If you have questions or your situation is complex, talk to an estate planning attorney.

Learn More About Wills

For more information about wills, see the following articles:

• How to Make a Will

You can find out more about making WillMaker’s will and living trust in WillMaker’s Legal Manual.