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.
Simple Will
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 circ*mstances, a Simple Will is probably sufficient for your needs.
Pour-Over Will
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.
Holographic Will
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 Wills
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.
International Will
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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Attorney Caprice L. Collins is a top rated Harvard Law School graduate. She has 34 years of legal experience with a successful law practice devoted exclusively to Estate/Business Planning and Trust Administration. Attorney Collins is a well-respected keynote speaker on Wills, Living Trusts, Estate Planning, Business Planning and Trust Administration. She has appeared on California’s Real Estate Radio Station KTLK AM 1150 as a legal expert on Estate Planning and Living Trusts among many other notable media appearances.
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FAQs
An estate planning attorney typically handles not only drafting your will, but also trust documents (if appropriate), healthcare and financial powers of attorney, living will, HIPAA release, and other documents that would provide protection for your loved ones, protect your assets, and help you to avoid costly probate.
What is the most common type of will used in California? ›
Simple wills: A simple will is the most common type of will. It is a straightforward document that allows you to name your beneficiaries and an executor for your estate. Simple wills are typically used by people with relatively few assets and straightforward estate plans.
What are the four basic types of wills? ›
What are the four basic types of wills? Instead of asking "What is a will," an estate planner should instead ask themselves, "What type of will is best suited for the situation?" The four main types of wills are simple wills, testamentary trusts, joint wills, and living wills.
What are the best wills to have? ›
1. Living Will. Despite the similarity in name, a Living Will actually does a lot more than a traditional Last Will and Testament can. Also called an Advance Healthcare Directive, a Living Will is good for end-of-life planning and to make your wishes known regarding medical care you may want in the future.
How much do most lawyers charge for a will? ›
It's very common for a lawyer to charge a flat fee to write a will and other basic estate planning documents. The low end for a simple lawyer-drafted will is around $300. A price of closer to $1,000 is more common, and it's not unusual to find a $1,200 price tag. Lawyers like flat fees for several reasons.
Who should be consulted to help with estate planning and writing wills? ›
If you are trying to decide how to provide for the distribution of your assets or care of your children after you die and you need legal assistance, you should hire your own lawyer. For more information, go to Attorneys/Lawyers page or visit the California State Bar website.
What is the average cost of a will in California? ›
How much does a will cost in California? The average cost for will and trust in California can range from $400 to $700. Estimates are based on three factors: the execution method, the complexity of the estate, and the attorney's fees.
What is more powerful than a will? ›
A living trust may be better than a will if: You want to maintain privacy over your property or assets. You have several real estate properties. You have significant financial assets.
Do all wills have to be filed with the court in California? ›
A: All wills must be filed in the California probate clerk's office within 30 days of a person's death. Failure to do so will result in the freezing of that person's assets until debts are paid. The executor of the will may be held legally liable for all associated costs.
What is the golden rule when making a will? ›
“In the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed, however straightforward matters may appear, and however difficult or tactless it may be to suggest that precautions be taken: [the rule is that] the making of a will by such a ...
Simple will
Simple wills are the most common type of will — and the type most people associate with the concept of a will. They outline how you'd like your assets to be handled and how and where they should be distributed. Simple wills typically name an executor or trustee to manage your estate.
What's better than a will? ›
A living trust, unlike a will, can keep your assets out of probate proceedings. A trustor names a trustee to manage the assets of the trust indefinitely. Wills name an executor to manage the assets of the probate estate only until probate closes. Trusts tend to be more expensive and more complex to maintain than wills.
Who is the best person to draw up a will? ›
Hiring a lawyer or attorney to write your will is the traditional route most people follow, and for good reason: having a professional closely assist in your process can offer a level of reassurance you're unlikely to find elsewhere.
Who is the best executor of a will? ›
Given the magnitude of the responsibilities and the intimacy of the role, you may want to name a close friend or relative as executor, someone who fully understands and respects your wishes, as well as those of your beneficiaries, and who might handle your sentimental heirlooms and other property more sensitively than ...
What are pitfalls of wills? ›
The biggest mistakes people make with their wills (and how to avoid them)
- Mistake 1: Not executing your will properly.
- Mistake 2: Not updating your will.
- Mistake 3: Forgetting about your non-probate assets.
- Mistake 4: Not including instructions for your digital assets in your will.
- Mistake 5: Not having a will at all.
The kind of lawyers who will not usually write a will include personal injury lawyers, divorce lawyers, DUI lawyers, Intellectual property lawyers, real estate lawyers, criminal defense lawyers, etc.
Who are the people who deal with wills? ›
It is generally advisable to use a solicitor or to have a solicitor check a will you have drawn up to make sure it will have the effect you want. This is because it is easy to make mistakes and, if there are errors in the will, this can cause problems after your death.
How much does a trust cost in California? ›
A major factor is the rate charged by the attorney, which may be between $200 and $400 per hour depending on the attorney's expertise, experience and business practices. There's no set hourly rate or cost for a living trust. However, an average California attorney may charge about $2,000 for the job.
Will vs trust California? ›
Main Differences Between Wills and Trusts
A trustor names a trustee to manage the assets of the trust indefinitely. Wills name an executor to manage the assets of the probate estate only until probate closes. Trusts tend to be more expensive and more complex to maintain than wills.
