In America, 60% of adults lack a will or proper estate planning for after they pass away. The task of writing your will can seem intimidating or overwhelming. It needn’t be.
Understanding the different types of wills can help you make an educated decision about your needs and help clear the confusion. This article will cover the different types of wills and help you understand which will best suits your needs.
Requirements of a Valid Will
A last will and testament, also called a will, has to meet certain standards to be considered valid in a court of law. The person writing the will – or the testator – must be at least 18 years of age and be of “sound mind.” That means they have to possess the legal understanding to be writing a will.
The testator must select an executor. An executor is a person who will manage the will, ensuring the assets are distributed according to the writer’s wishes.
The will is signed and dated in the presence of the required number of witnesses. The number of witnesses present varies by state but it is generally two.
A Simple Will
A simple will is a last will and testament without any fancy clauses or stipulations. It is used to instruct how you want your stuff to be given away and who gets it.
Like all wills, a simple will must be in writing and should be typed not handwritten. You can write your own but it is best to consult an attorney to avoid unintended legal issues.
The simple will names your executor, the person responsible for carrying out the instructions in the will. It describes the assets in your estate and how you wish for them to be distributed. It can also include the name of a guardian for any minor children.
A simple will is sufficient if there are no detailed instructions to be given in your will. If the testator does not have a lot of assets or property or is not expected to pay a large estate tax a simple will is appropriate.
It is generally used when the writer is in good health and under 50 years of age. The testator and the witnesses must sign and date the will.
Testamentary Trust Wills
A testamentary trust will create one or more trusts upon the execution of the will. A trust places your assets, or a portion of your estate to be set aside with special provisions. Based on the terms of the trust, the trustees must act by the terms of the will for how the trust is to be managed.
An example of this would be an inheritance willed to a disabled individual or someone known to be financially irresponsible. Establishing a trust allows the inheritance to be given gradually, over some time and under certain conditions.
This type of will provides better control of the distribution of assets to the beneficiaries, ensuring an inheritance to minor children and protecting the wealth for the benefit of the family.
A joint will is typically used by married couples wishing to leave their assets to the other spouse. It is used to combine both parties’ last will and testament into one legal document. Upon the death of one testator, the surviving spouse inherits the entire estate.
Then, when the surviving spouse passes away, the remaining estate is distributed to the beneficiaries according to the terms of the will.
A joint will prevents the surviving spouse from changing the terms of the distribution of property after the death of the first person. An example of where this type of will may be beneficial is when spouses marry later in life and may have children before the marriage.
Having a joint will may help ensure the distribution of property to all the children. Read this guide to understand more about legal guardianship.
One thing to remember is the joint will can not be revoked or changed after the death of the first spouse. So, if for example, the surviving spouse remarries, and has a stepchild, they can’t leave anything in that joint will to the stepchild.
A living will is entirely different from the three types of wills described above. A living will is not a last will and testament. It does not distribute your assets to your beneficiaries. A living will is a legal document that describes your wishes for your end-of-life care if you are unable to communicate for yourself.
Also called advanced directives or a directive to physicians, this document provides instructions about the type of medical treatment or life-saving measures you want to be used should you become unable to make those decisions.
It allows you to maintain control of your life in the event of serious injury or terminal illness. The most common use of a living will is to explain your decisions in end-of-life issues such as life support if you fall into a coma or vegetative state.
In the event of terminal illness, it addresses medical treatments such as tube-feeding, ventilator support, and pain medication. Preparing a living will ahead of time ensures you receive the treatment you want and relieves caregivers of the burden of making decisions during a very stressful time.
How to Choose from the Different Types of Wills
The type of will which is best for you depends on your unique situation and circumstances. Do you own a home or real estate? Do you have children from a current or previous marriage? Do you want your assets or property to be given to a specific person or organization?
How you answer these questions and more, will determine which will is appropriate for you. Remember, the goal of a will is to ensure your final wishes are carried out. The more specific you write the terms of your will, the easier and quicker the probate process will be for your family.
Writing a Will Doesn’t Have to be Difficult
Creating a will is one of the most important things you can do for your family. Understanding these different types of wills will give you a start on that often-delayed task.
This short article can not address every individual’s circumstances in writing a will. Do some research and consult your attorney for further information.
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