For most people, the foundation of their estate plan is a Last Will and Testament, or simply put. a “Will.” If you have yet to create your estate plan, you will likely want to start with a Will. That sounds simple enough, right? Maybe not given the fact that there are several different types of Wills from which you may choose. If that surprises you, you are not alone. Most people do not realize that there are numerous different types of Wills that a Testator can choose to create and execute. Knowing which type of Will you need is imperative since your Will often acts as the cornerstone of your entire estate plan. Just to make things a little more complicated, not all states even recognize all types of Wills.
As the name implies, a Simple Will is a basic Last Will and Testament that is used to distribute uncomplicated assets. If you wish for your estate to avoid being treated as an intestate estate, yet you do not have minor children, complex assets, or any special circumstances, a Simple Will is probably sufficient for your needs.
A Pour Over Will is a Will that is often used in conjunction with a trust agreement. There are two basic types of trusts – living and testamentary. A testamentary trust does not go into effect until the death of the Settlor (the creator of the trust) and can be triggered by a Will. A Pour Over Will “pours over” all of the Testator’s assets into a testamentary trust upon the death of the Testator. A Pour Over Will can also be used with a living trust that is already in effect at the time of the Testator’s death. In that case, the Pour Over Will is used to ensure that any last minute additions to the Testator’s estate, or any forgotten assets, make it into the trust, thereby avoiding intestate administration.
Conditional or Contingent Will
This type of Will is only triggered if a specific event occurs, or fails to occur. For example, the triggering event might be that your child does reach the age of majority or you might specific that the Will is only applicable if your child does not marry prior to your death. If the triggering event or condition is not met, the Will is not valid. In that case, a prior valid Will can be used to probate the estate or, if no prior valid Will exists, the estate will be probated using the state’s intestate succession laws.
A holographic Will is a written document that you signed and dated in your own handwriting, but that is not witnessed. The majority of states no longer consider a holographic Will to be valid. Even in a state where holographic Wills remain valid, they are frequently challenged in court.
Oral or Nuncupative Will
A nuncupative Will is an oral, or spoken, Will that the Testator tells someone (a witness) prior to death. Most states do not recognize nuncupative Wills. Of the states that do recognize oral Wills, most put restrictions on the Will, such as only being able to distribute a small amount in assets or that the witness write down everything the Testator said immediately after the Will was spoken. Because nuncupative Wills are frequently not considered valid, and are extremely vulnerable to a challenge in states where they are recognized, it is not wise to rely on an oral Will.
Couples often create and execute their Wills at the same time. They may choose to include the same provisions in each Will and leave their estates to the survivor. One important decision to make when creating Wills together is whether or not the survivor has the right to change the Will after the death of the first spouse.
If you own assets in several countries, you could run into problems if you execute a Will in more than one of those countries. Did executing a Will in a foreign country revoke your Will here in the U.S.? Which country has the right to collect taxes? Because of these potential legal issues, you may need to execute an “international Will” that addresses all your assets, wherever they are located. You will need to work with an estate planning attorney who is familiar with the various treaties and agreements that apply to property owned in foreign countries if you decide to execute an international Will.
This is one of the many reasons why you should work with an experienced California estate planning attorney when creating your estate plan.
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