What Are the Three Types of Wills?

Wills are one of the foundational documents for any estate plan. A will is essential for laying out the system of property division for an estate, naming important individuals tasked with carrying out the testator’s final wishes. California recognizes three forms of a last will and understanding the differences between each is key to creating a comprehensive estate plan.

What Is a Will?

A will is a written legal document that outlines the lines of asset division among estate beneficiaries after a testator, the creator of the will, passes away. The plans in a will are carried out by the executor of an estate, who is in charge of distributing assets to beneficiaries and managing the preferred end-of-life arrangements for the testator. Typically, a will includes a power of attorney designation, which appoints an individual of the testator’s choosing to handle any financial or healthcare directives that the testator could not complete, usually in situations where they are incapacitated.

In most cases, an estate will go through the probate process, which legally carries out the asset distribution of the will, ensuring the estate is properly divided among named beneficiaries. Depending on which assets are included in the deceased’s estate, the probate process can be shortened or avoided. For example, estates under $150,000 can go through shortened probate procedures because of the estate’s low collective value. Some assets, like those with joint tenancy, already have a named heir, meaning they will automatically be given to that person when the testator passes away.

Types of Wills and Their Uses

The specific kind of will used in an estate plan can vary from a simple will, which outlines basic asset division standards, to a joint will which incorporates clauses that award any assets to a surviving spouse upon the testator’s death. The way that the will is created and verified impacts its validity. California legally recognizes three kinds of wills, which include the following:

• Attested Wills – Attested refers to a will that has been signed before a witness. It is considered “self-proving” because of the testator’s verified involvement in its creation. These wills must be signed after they are complete while in the presence of at least two witnesses. Both witnesses cannot be beneficiaries of the will and must be neutral parties. Self-proving wills are better respected by probate courts, which are less inclined to cast doubt on their validity.
• Holographic Wills – Holographic wills are handwritten instead of typed like most traditional wills. The testator must hand write these wills, but they are not legally required to be signed in front of witnesses. To be considered legally valid, a witness must verify that the testator wrote the will, or they must provide handwriting samples from the testator that match the will.
• Statutory Will – Statutory wills are blank forms that can be printed out and completed without legal help. These templates might make creating a will simpler, especially for those unsure of what should be in their will. A statutory will must be signed in front of two impartial witnesses, just like attested wills. The testator can also acknowledge these wills as self-proving, which is useful in probate court. Although seemingly easier than dealing with an estate planning attorney when creating these wills, having a legal professional review these documents before officially using them is important for securing their validity.

If a will is not considered one of these three types, the probate court might not consider the will valid, meaning that the estate will be “intestate,” and the assets in the estate will be divided among any living heirs. Making sure that a will is one of these three legally valid documents is crucial for avoiding any problems with the estate during the probate process, allowing any named beneficiaries to receive their inheritance without issue.

FAQs

Q: What Is the Most Common Type of Will?

A: A simple will is one of the most common kinds of will used in the estate planning process. Simple wills stipulate how an estate executor should manage the deceased’s assets. A plan for distributing any remaining assets to named beneficiaries specified by the testator, and the amounts they wish to give to each beneficiary, will be included in a simple will, as well as instructions for paying debts and estate administration costs.

Q: What Are the Four Basic Types of Will?

A: The four basic types of wills are: simple wills, testamentary trust wills, living wills, and joint wills. Depending on the factors that impact the testator’s life, such as marital status, whether they have children, or their age, the type of will that works best with a particular estate can vary.

Q: What Is the Best Form of Will?

A: Each estate plan is different, so the will that could be the best for one person could be unnecessary or too much for another. For example, married couples can opt for a joint will that acts as a mirror of their spouse’s will, naming them as the primary inheritor of the estate. For single or divorced individuals, a simple will or testamentary trust may be more suited for their needs.

Q: How Many Kinds of Wills Are There?

A: There are numerous different will designs, and each can be set up to support a testator after their passing, but the presentation of the will is what makes it valid. California recognizes three distinct kinds of wills as legally valid, including attested wills, statutory wills, and holographic wills. Nuncupative wills, usually called oral wills, are not considered legally valid.

Finding the Right Will

Planning an estate requires having a comprehensive understanding of the will-making process. To ensure that a will can stand up in probate court, consulting an estate planning attorney can help address any issues or questions with a will before making it part of a total estate plan. The legal team at Robert G. Petrovich, Attorney at Law, can help with any will-making needs. For more information on our services, visit our website and contact us to get started.