Wills and Probate
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Types of Wills
It may surprise you to learn that there are several different types of wills. The one that is best for you will depend on your estate and how you want it distributed. But be careful when preparing a will because not all types are valid in all states.
Simple or Statutory Will
A simple or statutory will is a “one-size-fits-all” document that works well for people with small, uncomplicated estates. You can prepare one by filling in the blanks in a state-specific template that contains standard terms that meet your state's legal requirements.
If you have set up a living trust, you can use this type of will to name the trust as your primary beneficiary. When you die, any probate assets not already named in the trust will “pour” into it and be distributed according to its terms.
Conditional or Contingent Wills
This type of will specifies that its provisions are only valid if a certain event happens or does not happen. A common example is the beneficiary reaching a certain age. If the condition in the will is not met and the person does not have another will, the estate will be distributed as if there were no will.
There are three types of wills couples may choose to prepare. They are very similar, but the differences are important:
Reciprocal or Mirror Wills: Couples, usually spouses or civil partners, may each make identical wills leaving everything to the other person. Each will may also include the same, mutually agreed upon beneficiaries should they both die at the same time. The survivor can change the will at any time.
Joint Will: Couples may also choose to make a single will signed by both. Often this type of will leaves everything to the surviving partner and then outlines who inherits the estate after the second person dies. The survivor cannot change this will.
Mutual Will: This is comprised of two separate wills with identical provisions, similar to mirror wills. However, each contains a promise that the survivor will not make changes later, similar to the joint will.
The holographic will is an unwitnessed document that you have written, signed and dated, all in your own handwriting. Fewer than half of all states recognize this type of will. It is very vulnerable to challenges in probate court.
Oral or Nuncupative Will
An oral will is spoken, not written. You tell someone aloud how you want your property distributed after you die. Few states recognize oral wills, but those that do place significant restrictions on them. For example, they must meet state legal requirements and must have at least two or three witnesses. These wills are also called deathbed wills because they are often made when death is near.
A living will is not a document that distributes your assets after you die. Rather, it sets out instructions for what type of medical treatment, if any, you want administered in case you are unable to communicate your wishes at that time. Examples of instructions in a living will include whether you want to be put on a respirator or have a feeding tube, and whether you should be resuscitated if you stop breathing.
No matter the type of will you choose, it is always a good idea to discuss it with an estate planning lawyer to be sure the document will do what you want it to do and it is valid in your state.