Types of Wills

Wills can accomplish a variety of objectives

A couple plans their wills.
•••

Image Source / Getty Images

A will is a critical piece of your estate plan, and dying without a will can cause significant problems. If you own assets, have children, or otherwise want to direct what happens after your death, it’s wise to have a will. Without one, state laws typically dictate who receives assets or cares for dependents—potentially leaving assets to people you don’t like (or who don’t need the money) and putting children in bad situations.

There are several types of wills available, and they can cover everything from managing assets to health care issues and more. By understanding your options, you can craft a plan that works well for yourself and for loved ones.

Key Takeaways

  • A will helps you manage your affairs after your death.
  • Common types of wills include living, simple, joint, and mirror.
  • A simple will leaves assets to a spouse or children, and more complex wills can accomplish other objectives.
  • Free and low-cost wills are available online, but it’s ideal to get advice from an estate planning attorney to minimize problems.

Living Wills

A living will is a document that explains what types of medical treatment you want—and don’t want. This information may be helpful when you’re unable to communicate, such as when you’re unconscious after an accident or surgery. For example, you might specify whether or not you want to be kept alive with a feeding tube or a breathing machine. That way, doctors and family members don’t have to guess, and they won’t take a course of action that you disagree with.

To create a living will, consider what courses of treatment you want doctors to pursue. What’s acceptable to you, and which treatments go too far? An attorney or legal service can help you create a living will, and they can help you explore potential scenarios. Once you have the document, keep it in a place that’s accessible to others (and let somebody know where to find it) in case of an accident or illness.

A living will explains the kind of care you want, but it does not authorize anybody else to make decisions on your behalf. If you want someone to make health care decisions for you, you can name a health care power of attorney (also known as an agent or proxy) using other documents.

Simple Will

A simple will provides instructions for handling your assets and other matters after death. For example, you might say who should receive assets in your bank account and who should get your home.

This document often names an executor or personal representative to manage your estate and complete administrative tasks. That person will do things such as close accounts, pay off debts, sell property, and distribute any remaining assets to your heirs.

To get a will, consult with a legal professional who can help you draft a document appropriate for your needs.

Is a Simple Will Sufficient?

When a will primarily covers distributing your assets, it may be called a simple will, but not all wills are simple. Wills can also address other topics, such as who should care for minor children. More complicated wills can accomplish much more.

Instructions in your will generally do not apply to assets outside of your probate estate. For example, if you name designated beneficiaries for an IRA or retirement plan, the will typically would not control what happens with those assets.

Joint or Mirror Will

A joint will is a single will typically designed to cover two people in a relationship. For example, a married couple might use a joint will instead of having each person use their own will. When the first person dies, all assets go to the surviving spouse. After the surviving spouse dies, assets are distributed according to instructions in the will (to children or charities, for example).

While a joint will may seem appealing, using a combined will for both lifetimes can have consequences. For example, after the first person dies—which could be at a tragically young age—life goes on for the survivor, and they may have good reasons to update the will, such as children who no longer need inheritances, or marrying a new spouse. However, joint wills can be very difficult to change once the first spouse dies. Consequently, this can limit your ability to, for example, include a new spouse or child in the will.

Mirror Will

To help each person maintain flexibility, consider using a mirror will instead. With this approach, each will says basically the same thing—that you leave everything to your spouse. If you pass, your spouse gets your entire estate and vice versa. However, each person has their own will, so the survivor can make changes later, if needed. Additionally, mirror wills can be executed by pairs of people who aren’t married, such as siblings, partners, and business partners.

Other Types of Wills

You can customize a last will and testament to meet a wide variety of goals. You might hear different names for different variations on the theme. But in essence, wills are all about distributing assets and managing your affairs after death.

  • Pour-over will: A pour-over will provides instructions to leave all assets in the estate to a trust (often a revocable living trust). This enables the trust to control any assets you didn’t previously title as trust assets. For example, you might not put every little thing you own into a trust, but you’d still like the trust to handle your belongings.
  • Oral wills: Also known as “nuncupative” wills, oral wills are spoken instructions. In many states, oral wills are not valid and in some, you must meet strict requirements for the state to recognize one. For instance, North Carolina allows you to create an oral will if your death is imminent and there are two witnesses.
  • Holographic will: A holographic will is a will written in your own handwriting and is often created without witnesses. These documents often do not meet specific requirements and as a result, they can be problematic.

Requirements for a valid will vary from state to state. It’s critical to understand what it takes to properly execute a will in your state, and you might need to update your estate plan as things change (if you move or as laws evolve, for example).

How To Choose the Right Type of Will

What Are You Trying to Accomplish?

Start by determining what you want your will to do, and make sure you’re using the right tool for the job. For example, a living will or other health care directives might be appropriate if you want to plan for medical care when you’re incapacitated. But when you’re primarily concerned about managing assets after death, other wills such as simple or mirror may be needed.

Complexity and Flexibility

If you’re young, single, and have no kids or meaningful assets, a simple will might be all you need. With that document, you can name a personal representative and direct where your assets go after death. However, when your finances or family situation are more complicated, it’s wise to make a more robust plan.

Are You Using Trusts?

If a trust is part of your estate plan, you may need a pour-over will or language in your will that addresses the trust. Using a trust does not necessarily eliminate the need for a will.

Avoiding Disputes

If you anticipate problems, such as disputes among family members, use a will that is likely to be accepted. With a typed, printed will that you signed in front of reputable witnesses, there may be fewer questions about your intentions and your state of mind when making the will. Holographic and oral wills may be easier for others to challenge.

Speak With an Attorney

A good way to ensure you get the right will for your needs is to consult with an attorney licensed in your state. Online services might have excellent legal documents, but the question is whether or not those documents fit your needs perfectly. DIY websites include disclaimers saying they are not law firms, but they might offer access to attorneys licensed in your state for an extra fee.

When you speak with somebody instead of using a strictly online will service, you have valuable back-and-forth discussions that help uncover complexities. You might find that your life is more complicated than you realized. Plus, a local attorney can ensure you satisfy state-specific requirements.

Tips for Writing Your Will

Once you decide to make a will, take some time to think about what you want things to look like after your death. It might not be a pleasant exercise, but it may be rewarding, possibly helping you discover what’s most important to you. Then get the appropriate legal documents, and be sure to sign your will according to your state’s requirements. That final step—executing the document—helps ensure your wishes get followed.

It’s important to review your will periodically and make updates. When you face life changes such as marriages, divorces, births, deaths, or other situations, it may be time for a new will. It’s also wise to review your estate plan at least every three to five years, regardless of changes in your life.

Finally, consider other ways to manage your affairs after death. For example, it’s critical to keep beneficiary designations current on retirement accounts and life insurance policies. Those assets can pass to others regardless of what your will says, so review those instructions at least as often as you update your will.

Frequently Asked Questions (FAQs)

What type of will is typically handwritten?

A handwritten will is also known as a "holographic" will. While writing out your last wishes by hand might be better than nothing in an emergency, it’s ideal to use a typed will. In some states, a handwritten will might not be recognized.

Where can I get free forms to create my last will and testament?

Your state might offer free will templates, and online services offer free or low-cost documents. However, it’s best to speak with an estate planning attorney if you’re able to. A professional can evaluate your situation and help you craft a will aligned with your goals and any state requirements.

Want to read more content like this? Sign up for The Balance’s newsletter for daily insights, analysis, and financial tips, all delivered straight to your inbox every morning!

Article Sources

  1. MedLine Plus. “Advanced Care Directives.”

  2. American Bar Association. "Introduction to Wills."

  3. Alper Law. "What Is a Last Will and Testament?"

  4. O'Flaherty Law. "Should I Get a Joint Will?"

  5. Paul Miller Law Office. "Joint Wills—Just Say No."

  6. Cornell Law School Legal Information Institute. "Mirror Wills."

  7. Hammond Law Group. "What Is a Pour-Over Will?"

  8. North Carolina General Assembly. “§ 31-3.5. Nuncupative Will.”

  9. Law Offices of Stimmel, Stimmel & Roser. "Holographic Wills - The Basics."

  10. Superior Court of California, County of Alameda. “Living Trusts.”

  11. Atlanta Will+Trusts Law Group. “How Often Should I Update My Will and Other Estate Papers?