Most adults are at least somewhat aware they should have, at a minimum, a basic will. Yet 51 percent of those between ages 55-64 don’t have a will and 62 percent of those between the ages of 45-54 don’t have a will. When you die without a will, the state gets to decide who will inherit your assets.
Generally speaking, if you have a spouse and/or children, then that’s where your assets will go. If you have minor children and die without a will, the state will choose their guardians. If you are not married and have no children, then the state will determine which relatives will inherit your assets.
If you don’t want to leave the determination of who will receive your assets to the state, then it is probably time to draft a will. Many people are inhibited by the various types of wills available. When they can’t decide which type is right for them, they simply end up doing nothing at all. An experienced estate-planning attorney can help you decide which type of will is best for your individual circumstances, particularly because not all types of wills are legal in all states. Below you will find a description of each type of will.
- Simple Will or Statutory Will—This is your basic, “one-size-fits-all” will, which works best for those who have small estates with few complications. Those under the age of 50 who don’t expect to leave assets valuable enough to be subject to estate taxes, can probably get by just fine with a simple will.
- Guardianship and Trust will -This type of will allows you to designate a guardian for your minor children and name someone as a Trustee to manage assets left to your minor children. Like all wills, you name an executor, who has the authority to carry out the terms of your will.
- Pour-over Will—A pour-over will is a part of a living trust, serving as a “safety net” to catch any assets which were not transferred or included in the living trust. When you die, any probate assets which were not already named in your trust “pour” into the trust, and are distributed according to the terms of the trust.
- Conditional or Contingent Wills—A conditional or contingent will has certain provisions which become valid only if a specific event happens—or does not happen. As an example, you could have a conditional will which states your children will not inherit certain assets until they reach a specific age. When the conditions of the will are not met—and there is no other will—the estate will be distributed as though there were no will at all.
- Living Will—A living will is a medical directive and not a will which distributes assets after death. A living will advises others about what kinds of medical treatments you would want in the event you were unable to make your wishes known. As an example, if you were in a serious car accident, and could not tell someone else whether you would want to be put on a respirator or have a feeding tube inserted in the event your condition was unlikely to improve, your living will would do that.
- Holographic Will—A holographic will is a handwritten will with no witnesses. This type of will is extremely vulnerable to probate court challenges, plus fewer than half of the states in the U.S. recognize the validity of a holographic will.
- Oral Will—As the name implies, an oral will is spoken, rather than written. When a person tells another how they want their property distributed after their death, this is an oral will. Very few states recognize oral wills, and those that do specify very limited and unusual circumstances. As an example, New York recognizes an oral will, only if it was heard by at least two witnesses and was made by: a mariner while at sea, a member of the U.S. armed forces while in service during a war, or a person who services with or accompanies armed forces who are engaged in war or armed conflict. In North Carolina, an oral will is considered legal if it is made during the person’s last illness, or when the person is in imminent danger of death (and, in fact, does not survive).
As you can see, there are many different types of wills. By speaking to a knowledgeable estate planning attorney, you can determine which will works best for your individual circumstances. Contact us today to get started!