When you think about estate planning, you probably envision a Last Will and Testament as the foundation of any well-drafted estate plan. Whether you have executed your own Will yet or not, you likely know what one is and how a Will fits into your overall estate plan. What you may not know, however, is that all Wills are not the same. There are actually different types of Wills. To help ensure that your estate plan works as intended, the Long Island attorneys at Eghrari Law Firm help you decide which type of Will is right for you.
Understanding the Types of Wills
A Last Will and Testament is a legal document that states how a person wants their assets distributed after they pass away. It allows the person, referred to as the “Testator,” to control what happens to their property and decide who oversees the administration of their estate. In the absence of a Will (or trust), state intestate succession laws decide what happens to a decedent’s estate assets. Although all Wills have the same primary objective, there are different types of Wills, including:
- Simple Will. As the name implies, a “Simple Will” is a simplified “Last Will and Testament” that works well for someone with relatively modest, uncomplicated assets. A Simple Will can direct the distribution of your estate assets and ensure that do not leave behind an intestate estate.
- Pour-Over Will. You may decide to use a trust agreement to distribute most (or all) your estate assets instead of a Last Will and Testament. In that case, a Pour Over Will is a crucial addition to your estate plan. A Pour Over Will can be used to “pour over” the estate assets into the trust at the time of your death if you establish a testamentary trust or in conjunction with a living trust to catch any assets that did not make it into the trust prior to your death.
- Living Will. Despite having the word “Will” in the name, a “Living Will” is not a document that facilitates 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 and Oral (Nuncupative) Will. A holographic Will is written entirely in the handwriting of the Testator and is not executed and attested in accordance with the formalities prescribed by law. An oral, or nuncupative, Will is unwritten, and at least two witnesses must watch the Testator make the Will. Most states no longer recognize holographic or oral Wills. New York, however, does recognize both types of Wills under very limited circumstances. A nuncupative (oral) or holographic Will is valid only if made by:
- A member of the armed forces of the United States while in actual military or naval service during a war, declared or undeclared, or other armed conflict in which members of the armed forces are engaged.
- A person who serves with or accompanies an armed force engaged in actual military or naval service during such war or other armed conflict.
- A mariner while at sea.
- Reciprocal or Joint Will. These are Wills typically executed by spouses, providing that the surviving Testator inherits everything upon the death of the first spouse. Reciprocal Wills can be changed by the surviving spouse, even after the death of one spouse; however, if you execute a joint Will, the terms cannot be modified or revoked by the surviving spouse after the death of the first spouse.
- Conditional or Contingent Will. This is a type of Will that only takes effect upon the occurrence of a condition or event. A common example of a condition is a beneficiary reaching adulthood. If the condition is not met, the Will does not take effect and the Testator’s estate is probated as an intestate estate if no other valid Will exists.
- International Will. If you own property in another country, you may need an international Will to avoid considerable 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.
Do You Need Assistance Choosing the Right Type of Will?
For more information, please join us for a FREE estate planning seminar. If you need help choosing the right type of Last Will and Testament, contact the Long Island estate planning attorneys at Eghrari Law Firm by calling us at 631-265-0599 to schedule your appointment.
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