All Wills Are Not Created Equal
You probably have a good idea of what a Last Will and Testament is and why you should create one. What you may not know is that all Wills are not created equal.
There are different types of Wills and the type you choose to create should be based on which type is best suited for your needs and circumstances. To help get you started, the Coral Gables estate planning attorneys at Stivers Law offer a brief explanation of the different types of Wills.
Different types of Wills:
- Simple Will. A Simple Will is what you likely think of when you hear the term “Last Will and Testament.” A Simple Will is appropriate to distribute a modest estate that includes uncomplicated assets as well as to avoid intestate administration of your estate.
- Pour-Over Will. If you decide to use a trust agreement to distribute most of your estate assets, you will also need to execute a Pour Over Will. A Pour Over Will is used to “pour over” the estate assets into the trust at the time of your death. You will establish a testamentary trust that does not take effect until your death at which time the terms of the Pour Over Will dictate that all estate assets be poured over into the trust. The terms of the trust are then used to hold and/or distribute your assets. A Pour Over Will can also be used in conjunction with a living trust to catch any assets that did not make it into the trust prior to the Settlor’s (your) death.
- Living Will. The term “Living Will” can be confusing because a Living Will has nothing to do with the distribution of your estate. Instead, a Living Will is a type of advance directive that allows you to make healthcare decisions in advance in the event you are unable to make them yourself because of your own incapacity at some later point.
- Holographic Will. A holographic Will is a written document that you signed and dated in your own handwriting, but that is not witnessed. Most states no longer consider a holographic Will to be valid, including Florida. You can create a handwritten Will; however, it must be witnessed and signed by two other people.
- Oral or Nuncupative Will. Also known as a “deathbed Will”, a nuncupative Will is an oral, or spoken, Will that the Testator speaks out loud to someone (a witness) prior to death. Most states no longer recognize nuncupative Wills, including the state of Florida.
- Reciprocal or Joint Will. Married couples who intend to leave all their property to one another often create reciprocal or joint Wills. The surviving Testator will inherit everything upon the death of the first spouse. The idea is that when the surviving Testator passes away, the remaining estate will be distributed to the couple’s chosen beneficiaries, pursuant to the terms of the Will. Reciprocal Wills may be changed by the Testator, even after the death of one spouse; however, if you execute a joint Will, the terms cannot be modified or revoked after the death of the first spouse.
- Conditional or Contingent Will. This is a Will that only takes effect upon the occurrence of a condition or event. For example, the Will “activates” when a beneficiary reaches the age of majority. If the condition or event never occurs, the Will does not take effect and the Testator leaves behind an intestate estate upon death if no other valid Will exists.
- International Will. If you own property in another country, you may need an international Will to avoid confusion during the probate of your estate. In 1973, the International Institute for the Unification of Private Law (UNIDROIT) held a Convention Providing a Uniform Law on the Form of an International Will. Wills that meet the requirements are recognized by participating countries. If you own property in a non-participating country, you should talk to your estate planning attorney about how to handle that property in your estate plan.
Contact Coral Gables Estate Planning Attorneys
For more information, please join us for an upcoming FREE webinar. If you have additional questions or concerns about choosing the right type of Last Will and Testament, contact the experienced Coral Gables estate planning attorneys at Stivers Law by calling (305) 456-3255 to schedule an appointment.