Types of Wills
A handwritten will (holographic will) must be written, dated, and signed entirely in the handwriting of the person making the will. It does not have to be witnessed. Handwritten wills are not legal in many states. They are generally not recommended even in the states where they are legal. Probate courts traditionally have been very strict when examining handwritten wills after the death of the will writer. Since a handwritten will is not normally witnessed, judges sometimes fear that it might have been forged. A judge may require proof the will was actually and voluntarily written by the deceased person, which sometimes is not easy to do.
A pour-over will is one that directs the property subject to it goes to a trust. For example, sometimes people make their living trusts beneficiaries of their wills. When will property is poured over to the trust, the trust controls who receives that property.
Pour-over wills do not avoid probate. All property left through a will—any kind of will—must go through probate, unless the amount left is small enough to qualify for exemption from normal probate laws. Probate is not avoided simply because the beneficiary of a will is a living trust. It’s generally better to simply use a backup will to take care of what is leftover (non-trust property). A backup will can name the people the client wants to get certain property and skip the unnecessary extra step of pouring the property over to the living trust after the client’s death.
When used as a backup will, a pour-over will actually has a disadvantage that standard wills do not: It forces the living trust to go on for months after death, because property left through the pour-over will must go through probate before it can be transferred to the trust. Usually, the property left in a living trust can be distributed to the beneficiaries, and the trust ended, within a few weeks after death.
Pour-Over Will
There are two situations wherein it may make sense to use a pour-over will: [1] if an AB living trust was set up to save estate taxes (each spouse writes a pour-over will, leaving his or her will property to the AB trust), and [2] if a living trust includes a child’s trust (client may want any property the child inherits through the will to pour over into that trust).
Statutory Wills
A statutory will is a preprinted, fill-in-the-blanks, form authorized by state law. California, Maine, Michigan, and Wisconsin have statutory wills. In theory, statutory wills are an excellent idea—inexpensive, easy to complete, and reliable. In practice, statutory wills are often too limited in scope. The choices provided in the statutory forms are quite narrow and cannot legally be changed—the client cannot customize it to fit a situation or change it at all.
Normally, statutory wills are useful only if the client is married and wants all or the bulk of the property to go to the spouse (or, if she predeceases client, in trust for minor children). Because of their limitations, no state has adopted them since the late 1980s.
Other Types of Wills
• Oral wills. Oral wills (nuncupative wills) are valid in a minority of states and, even where valid, are acceptable only if made under special circumstances, such as the will maker’s perception of imminent death on the battlefield or in some other highly unusual circumstance. They are not to be relied on as a serious estate planning device.
• Electronic wills. Only Nevada authorizes what is called an electronic will (Nev. Rev. Stat. §133.085). An electronic will refers to an original will created and stored exclusively in an electronic format—usually, on a computer. The will must use advanced technology to create a distinctive electronic signature and at least one other way to positively identify the will maker, such as a fingerprint, retinal scan or voice or face recognition technology. There are currently no readily available or acceptable methods for making an electronic will that is trustworthy and valid. Nevada is laying the groundwork for a time when such wills will be easy to prepare. When that time comes, other state laws are sure to follow.
• Video or film wills. Video or film wills are not valid under any state’s law. But films of a person reciting will provisions, such as to whom they are leaving property, can be useful evidence if a will is challenged, demonstrating the will maker was of sound mind and not under undue influence.
• Joint wills and contracts to make a will. A joint will is one document made by two people, usually a married couple. Each leaves everything to the other, and then the will goes on to specify what happens to the property when the second person dies. A similar method for controlling both spouses’ property is called a contract to make a will. Each spouse agrees by contract to make a will and not revoke gifts to specified beneficiaries, even after one spouse has died.
Joint wills and contracts to make a will prevent the survivor from changing his or her mind about what happens to the property, even if circumstances change drastically. A joint will or contract to make a will to control property of a surviving spouse is not recommended. If your client wants to impose controls over property left to a spouse, the sensible way to do it is through a trust.
• Living wills. A living will (health care directive) has no relation to a conventional will. A living will is a document in which one states whether or not they want their life artificially prolonged by use of life-support equipment. Depending on state law, other issues related to health care can also be covered.