When it comes time to estate planning, a will is one of the most important legal documents. Even if you have a good grasp on your current estate plans, there is no guarantee that your desires will be followed up on after your passing. Writing a will sets a hard legal precedent in terms of how you want your estate and various assets to be handled, providing your loved ones with clear guidance and offering yourself a sense of security that your wishes will be carried out.
What is a Will?
A will is a legal document that spells out your wishes regarding who does (and does not) receive your various assets after your death. This differentiates a will from a trust, which is a document that gives another party the authority to handle your assets for the benefit of your beneficiaries.[1] Though state laws vary on the specific requirements for a will, the most basic requirements are that they are written by someone over the age of majority who is of sound mind.[2] This person is referred to as a “testator,” while the person they choose to handle the distributor of the estate is the “executor.” In addition to writing the will itself, the testator must also sign and date the document (usually in front of one or more witnesses) and will often notarize it as well.
Different Types of Wills
There are many different types of wills that serve different purposes. Which one you need will depend on your specific circumstances and needs.
- Testamentary Will: A testamentary will, also known as a last will and testament, is a document that is used to transfer the testators’ assets to their beneficiaries after death. Testamentary wills can also be used to appoint guardians for minors, name the executors who carry out the will’s directions, and set up trusts for beneficiaries.[3] Though there are many different types of wills, a testamentary will is often seen as the “traditional” example of such a document.
- Joint Will: A joint will is a document created by two testators who agree to leave their belongings and assets to each other in the event that one of them dies. This is most often done in cases where a couple wants to ensure that when one spouse dies, the other inherits the estate. When the surviving spouse dies, their assets are then handed down to someone the couple named together. However, a surviving spouse cannot change a joint will after the death of their spouse, meaning that if they remarry and have stepchildren, they cannot leave them anything in the joint will.[4]
- Mirror Will: Also called a reciprocal will, a mirror will is actually two separate wills that are drafted almost identically, but have different names as testators and are signed individually.[5] This option is similar to having a joint will, as it allows a couple to form a similar agreement, while also allowing for changes after one of the spouses dies.
- Holographic Will: An uncommon option in modern times, a holographic will is handwritten and signed by the testator. It does not require witnesses or notarization. Instead, the minimal requirements for such documents are proof that the testator wrote the will, evidence that the testator was mentally fit, and that the will contains the testator’s wish to disburse personal property to beneficiaries.[6] Holographic wills are invalid in many states, with those that do consider them valid still placing them under heavy scrutiny.
- Living Will: A living will is an advanced medical directive that serves a different purpose from most other wills. Rather than determining who receives one’s assets after they die, a living is a legal document that includes detailed instructions for your personal medical treatment that both healthcare providers and caregivers are expected to follow, especially if you are rendered unable to make decisions for yourself.[7]
The Importance of a Well-Written Will
When someone dies without a valid will, it is called dying intestate.[8] Dying intestate can be far more expensive than preparing a will and estate plan, as it will typically leave any decisions about your estate in the hands of judges or state officials. With state courts and lawyers potentially getting involved, your family and loved ones could end up spending a lot of additional time, money, and emotional energy sorting out your affairs after you are gone, so it is a better idea to simply write a will ahead of time to avoid this conflict.
Writing can seem overwhelming, but you can get started by compiling a list of your debts and assets, including any personal property you wish to transfer to a specific person or entity. Still, even if you think you know how you want to distribute your assets, you should still seek out professional legal help when writing a will, as even a slight difference in wording can drastically change the meaning of a legal document. Preparing a will is a complex process, but it will provide a sense of clarity and security that makes the effort worth it.
[1] Jarrell, M. (2021, May 19). Will vs. Trust: What’s the Difference? Investopedia. https://www.investopedia.com/articles/personal-finance/051315/will-vs-trust-difference-between-two.asp.
[2] Jarrell, M.
[3] Kagan, J. (2021, June 9). Testamentary Will. Investopedia. https://www.investopedia.com/terms/t/testamentary-will.asp.
[4] Ramsey Solutions. (2021, May 19). Types of Wills: Which Is Right for You? Ramsey Solutions. https://www.ramseysolutions.com/retirement/types-of-wills.https://www.ramseysolutions.com/retirement/types-of-wills
[5] Ramsey Solutions.
[6] Kagan, J. (2021, May 19). Holographic Will Definition. Investopedia. https://www.investopedia.com/terms/h/holographic-will.asp.
[7] U.S. Department of Health and Human Services. (n.d.). Advance Care Planning: Health Care Directives. National Institute on Aging. https://www.nia.nih.gov/health/advance-care-planning-health-care-directives.
[8] Kagan, J. (2021, May 19). Intestate. Investopedia. https://www.investopedia.com/terms/i/intestate.asp.https://www.investopedia.com/terms/i/intestate.asp
About the author
Founder/Attorney, CCSK Law
I create customized solutions for families to address their planning needs.
I provide plans clients understand. Also, they make sure they know when to use them, and do so affordably. I love the opportunity to break through the legal jargon to clarify issues. We find success when we work through a person’s situation and put the law to work for them.