Understanding the Different Types of Wills

When most people think of a will, they envision a single, standard document that directs the distribution of assets after death. However, estate planning offers several types of wills, each serving different purposes and appropriate for different circumstances. Understanding these options becomes especially important after losing a spouse, when your estate planning needs may have changed significantly.

The Simple Will: A Foundation for Basic Needs

A simple will, also called a basic will, is the most common type of testamentary document. It allows you to name an executor to manage your estate, designate beneficiaries for your assets, name guardians for minor children, and specify funeral arrangements.

"Simple wills work well for straightforward estates," explains Thomas Reynolds, an estate planning attorney with 20 years of experience. "If your assets aren't complex, you don't have minor children from multiple relationships, and your wishes for distribution are relatively standard, a simple will often suffices."

For newly widowed individuals with uncomplicated estates, a simple will might be adequate. However, if you received substantial assets from your spouse or now have sole responsibility for minor children, you might need more sophisticated options.

Despite its name, a simple will still requires careful drafting to ensure legal validity. Each state has specific requirements regarding witnessing, notarization, and execution. A will that fails to meet these requirements might be deemed invalid during probate, potentially resulting in your assets being distributed according to state intestacy laws rather than your wishes.

Joint Wills: An Outdated Approach

Joint wills, which are single documents signed by two people (typically spouses) that serve as the will for both individuals, were once common but have fallen out of favor among estate planning professionals.

"I almost never recommend joint wills anymore," says estate planning attorney Patricia Garcia. "They create more problems than they solve, particularly because they're difficult to change after one person dies."

With a joint will, when one spouse dies, the survivor is typically bound by the terms established in the document, unable to make changes even if circumstances evolve. For this reason, most estate planners now advise against joint wills, recommending instead that each spouse create an individual will that coordinates with the other's estate plan.

If you and your late spouse had a joint will, consult with an estate planning attorney about creating a new individual will that better serves your current situation.

Mirror or Reciprocal Wills: Coordination Without Constraint

Unlike joint wills, mirror wills (sometimes called reciprocal wills) are separate legal documents created by two people, typically spouses, with nearly identical terms. Each names the other as the primary beneficiary and often includes the same contingent beneficiaries, guardians, and executors.

"Mirror wills offer the coordination couples want without the inflexibility of joint wills," Reynolds explains. "Each spouse retains the ability to change their will independently if needed."

If you and your deceased spouse had mirror wills, you'll likely need to create a new will since your primary beneficiary is now deceased. This presents an opportunity to reconsider all aspects of your estate plan in light of your changed circumstances.

Pour-Over Wills: Working with Trusts

A pour-over will works in conjunction with a trust, directing that any assets not already held in your trust at the time of your death be "poured over" into the trust and distributed according to its terms.

"Pour-over wills serve as safety nets," explains Margaret Wilson, a trust and estates attorney. "Despite the best intentions, many people don't transfer all their assets into their trusts during their lifetime. The pour-over will captures anything left outside the trust."

If you and your spouse established a revocable living trust as part of your estate plan, your pour-over will may need updating to reflect changes in the trust arrangement following your spouse's death.

Holographic Wills: Handwritten Documents

Holographic wills are handwritten by the testator (the person making the will) and not witnessed. Their validity varies significantly by state – about half of U.S. states recognize them, often with specific requirements.

"I generally discourage holographic wills," says Garcia. "While they might be better than nothing in an emergency, they're frequently challenged in probate due to questions about authenticity, capacity, or undue influence."

For a newly widowed person, the emotional turmoil of grief might make a quickly handwritten will seem appealing, but this approach risks creating legal complications for your beneficiaries. A formally prepared and properly executed will provides much greater certainty.

Oral Wills: Limited Recognition

Also known as nuncupative wills, oral wills are spoken declarations of a person's wishes made before witnesses. They have extremely limited legal recognition, typically only in extraordinary circumstances such as when made by someone in imminent danger of death.

"In my entire career, I've never seen an oral will successfully probated," notes Reynolds. "The legal hurdles are simply too high in most jurisdictions."

Rather than relying on verbal instructions to loved ones, which have little to no legal standing, create a proper written will to ensure your wishes are honored.

Video Wills: Supplements, Not Substitutes

While video recordings of will signings have become more common, particularly to demonstrate testamentary capacity, video "wills" by themselves are not legally valid in most jurisdictions.

"Videos can supplement written wills, particularly if you anticipate challenges regarding capacity or undue influence," Wilson explains. "However, they can't replace properly executed written documents."

Some individuals create video messages to beneficiaries explaining the reasoning behind certain decisions in their will. While not legally binding, these can provide emotional context and potentially reduce conflicts among beneficiaries.

Living Wills: Addressing Healthcare, Not Assets

Despite the similar name, living wills serve an entirely different purpose than traditional wills. Living wills specify your healthcare preferences if you become unable to communicate your wishes, particularly regarding end-of-life care.

"The terminology confuses many clients," Garcia notes. "A living will doesn't distribute property – it's an advance healthcare directive that guides medical decisions if you're incapacitated."

After losing a spouse, updating your living will becomes especially important since your spouse likely served as your healthcare proxy. Now you'll need to designate someone else to make medical decisions on your behalf if necessary.

Testamentary Trust Wills: Providing Ongoing Management

A testamentary trust will establishes one or more trusts that come into existence only after your death. These trusts can provide ongoing management for assets left to minor children, individuals with special needs, or beneficiaries who might benefit from assistance managing an inheritance.

Janet Morgan, who created a testamentary trust will after her husband's unexpected death, explains her reasoning: "With young children and the life insurance proceeds from my husband's policy, I wanted to ensure the money would be properly managed for their education and care if something happened to me. The testamentary trust gives me peace of mind that the funds would be used as intended."

Unlike living trusts, testamentary trusts don't avoid probate since they're created through the probate process. However, they can offer valuable protection and structure for managing inherited assets.

Conclusion: Choosing the Right Type for Your Situation

No single type of will is right for everyone, particularly during transitions like widowhood when your needs and circumstances may have changed significantly. The best approach is consulting with an experienced estate planning attorney who can assess your specific situation and recommend the most appropriate options.

"The right will for you depends on your assets, family situation, and goals," Wilson emphasizes. "What worked when your spouse was alive might not be optimal now. A thoughtful review of your estate plan can ensure it still serves your needs."

By understanding the various types of wills available, you can have more productive conversations with your attorney and make informed decisions about securing your legacy and providing for your loved ones.