If you’re named as the executor of a decedent’s estate, or if a loved one passes away and you want to begin the estate settlement process, you might face a large list of tasks. From honoring the decedent’s final wishes to ensuring that family members are supported during this time, the first weeks in the estate settlement process can raise some difficult steps.
As the administrator of the estate, one of your first tasks will be to determine whether the decedent passed away intestate (without a last will and testament) or testate (with a will). If the decedent passed away without a will, their state's intestacy laws will determine the distribution of the estate’s assets. As Atticus has explained before, dying intestate can often create additional legal headaches in the estate administration process.
If the decedent passed away with a will, however, many of the legal loopholes and administrative questions will be immediately resolved.
Now, we know what you might be thinking: I found a bunch of old legal documents... how do I know which one is the actual will? Is it pretty obvious which document is the will? Can there be more than one will?
A will document will often say “Last Will and Testament” in bold letters, but not always.
In most cases, it is relatively easy to determine which document is the decedent’s will. The document will often say “Last Will and Testament” in bold letters, so even the most unsure executor will have little trouble locating it.
But, in a few rare cases, the governing document might not say “Last Will and Testament” in such clear terms. In fact, in certain situations the will might not even be a written document at all. And even if you do locate the will, the type of will can vary by the language contained in the document.
This article answers your questions about wills by breaking them down into two categories: first, we’ll take a look at the format—or physical appearances—of different wills. Second, we’ll examine the different language that determines each type of will.
3 Main Formats of Wills
1. Attested Wills
An attested will is what we traditionally think of when we think of wills or see them portrayed in pop-culture.
Attested wills are a written legal document that is both signed by the testator and appropriately witnessed by third parties. The document will typically be referred to as “last will and testament,” although there is no longer any legal difference in the United States between either a will or a testament—it’s the same thing.
An attested will can be typewritten, hand-written, or even a combination of the two. Either way, it must be written and cannot be oral, meaning that there must be physical evidence of it. The most important thing with an attested will is that it was witnessed by a third party when the testator signed it. It is the presence of a witness that lends legal validity to an attested will and makes it the strongest—and most binding—format of a will.
Side note: In situations where the testator is incapacitated and cannot sign a will, the law does permit another individual to sign the document on the testator’s behalf. For this to occur, however, the testator must acknowledge that he or she approves the document.
2. Holographic Wills
A holographic will is one that is written by the testator but not witnessed. What is interesting about this type of document is that the will must be completely handwritten by the testator. It cannot be typed or written digitally, as it is the testator’s handwriting that proves the validity of the document.
If a will is completely handwritten and signed in front of witnesses, it would then fall in the category of an attested will. It is solely the absence of witnesses that distinguishes holographic wills from attested wills.
It’s important to note that each state’s requirements vary when determining the validity of holographic wills. Right now, only about half of the states in the U.S. accept holographic wills as legal testamentary documents. If you stumble across a document that looks like a holographic during the estate settlement process, make sure you consult your local state laws before proceeding.
It's interesting to note that holographic wills are also sometimes called "soldier's wills," based on the reality that many courts accepted handwritten final statements by actively-serving soldiers as a means for interpreting their last wishes should their duty end ill-fated.
3. Nuncupative Wills
A nuncupative—or oral—will is spoken by word of mouth in the presence of witnesses. This type of will is often also referred to as a “deathbed will” because the testator must make it in his last illness or under circumstances where he cannot make an attested will or holographic will.
Nuncupative wills are rare and seldom applicable, and only a few states now deem them valid in the court of law. One notable exception to the rule is when the testator is a person in military service. If the testator has been injured and faces imminent death, an oral will in the presence of witnesses will often be validated. Apart from that exception, however, nuncupative wills are rarely used.
Now that we’ve looked at the different formats of wills, let’s take a look at the legal structures that determine different types of wills.
3 Main Types of Wills
1. Simple Will
There’s nothing tricky about a simple will. As its name suggests, simple wills are...well, quite simple. The document language explains which assets are going to which individual, so simple wills are the easiest to interpret. This is what we typically think of when we think of wills—my coin collection to John, my house to Michelle, my condo to Fred—and it’s also the most common type of will to find.
An attested simple will only needs to meet a few qualifications. The document must:
- Identify the testator
- Identify the beneficiaries of the estate
- Name the testator’s assets and explain which assets go to which beneficiary
- Prove that the testator is of sound mind and acting on his or her own accord
- Include the testator’s signature
- Include the signature of witnesses
2. Joint Will
Like a simple will, a joint will explains which assets are going to which beneficiary. The only difference here is that joint wills are signed by two testators—usually a married couple. Instead of choosing to have separate wills, the couple agrees to one document and signs it. In most cases, each spouse will agree to pass their assets to the surviving spouse upon their own death.
It sounds great, right? After all, what should be so hard about agreeing to a document after already agreeing to marriage?
Although the document might sound good on the surface, there are two reasons that joint wills are inflexible planning documents for the future. The first reason is that many states do not recognize the validity of joint wills. Even if a couple has created a joint will, that document might not be upheld in a court of law.
The second reason is that the assets can become restricted. Once one spouse dies, the will becomes irrevocable and cannot change. If the surviving spouse remains alive for many years after the death of the first spouse, the surviving spouse may not be able to access the assets like the couple had originally intended.
3. Testamentary Trust Will
A testamentary trust will is a will that includes specific provisions to place assets within a trust. In the document, the testator will establish a trust by listing the assets to fund the trust, the trustee who will administer the trust, and the individuals who will benefit from the trust.
There are many benefits from creating a trust, but one of the primary reasons many individuals choose to include trust provisions in their will is to control the distribution of assets in the future. Even after the testator has passed away, the trust document can still fulfill the testator’s wishes in providing assets to certain beneficiaries.
Like a good executor, a good trustee should mitigate conflict between beneficiaries, preserve the assets within the trust, and follow the testator’s directives. A testator should choose a trustee that can be impartial, loyal, trustworthy, and willing to meet the requirements of the position.
Want to learn more?
The Atticus team is here to help.
Although you might not encounter every format and type of will during the typical estate settlement journey, understanding different testamentary documents is an important part of navigating potential risks and pitfalls in the process.
For more resources on the tasks of executors and estate settlement, check out our other articles here.