Understanding the Different Types of Wills
2022-11-22
Posted at 15:45h
in Estate Planning, Wills
Drafting a will is an important first step in settling your affairs. But with so many types of wills out there, it can be overwhelming to know which one will be right for you. Luckily, you don’t have to choose just one—you can write several different kinds of wills to ensure that all of your final wishes are honored. We put together this guide to help you determine which types of wills might be best for your needs.
Six Different Types of Wills That Are Recognized in Arizona
1: Simple Will
A simple will, also known as a last will and testament, is a basic, traditional type of will. But don’t let its name fool you—you can accomplish a lot with this simplistic type of will. For instance, you can list your beneficiaries and which assets they will receive, name a guardian for your minor children, appoint an executor who will oversee the distribution of your assets, and more.
2: Living Will
A living will is different from a traditional will, because its purpose is to lay out your healthcare preferences. You can use a living will to detail the exact type of care you do or do not want to receive, just in case you are ever incapacitated or otherwise unable to make those decisions at the time. A living will can also help guide your medical power of attorney in making important healthcare decisions on your behalf.
3: Testamentary Trust Will
Instead of creating a trust during your lifetime, a testamentary trust will opens up a trust upon your death. Rather than leaving your assets to your beneficiaries in a traditional type of will, with a testamentary trust will, you leave your assets to the trust.
Like other types of trusts, you name beneficiaries and a trustee to manage the assets in the trust. You can dictate when the beneficiaries will actually receive the assets in the trust, which is helpful when leaving an inheritance for your children or grandchildren. For instance, you can stipulate that they only receive their inheritance when they turn 18 or finish college.
However, unlike most trusts, testamentary trust wills are subject to probate. If you want your family to avoid the long, expensive process of probate, it’s better to set up a revocable living trust or an irrevocable trust instead.
4: Pour-Over Will
Used in conjunction with a revocable living trust, a pour-over will helps ensure that your assets avoid probate. Any assets that don’t transfer directly to a beneficiary will automatically transfer to the trust after your death. Without a pour-over will, any property that doesn’t have a beneficiary designation will need to go through probate and will be distributed to your heirs according to the laws of intestate succession.
5: Holographic Will
A holographic will is another name for a handwritten will. Not all states recognize holographic will as valid, but Arizona does. Unlike other kinds of wills, it’s not necessary to have any witnesses present when you draft and sign a holographic will in Arizona. The will must, however, be written and signed in your own handwriting.
Because handwriting can be hard to read, holographic wills are not an ideal choice. They are more of a last resort, like if you are on your deathbed and have not created a will yet. It’s better to type out your will ahead of time and give a copy to your lawyer in order to avoid any confusion or misinterpretations of your final wishes.
6: Electronic Will
An electronic will or e-will is a newer type of will that many states are beginning to recognize. This type of will includes the same things as a simple will, but is digitally created and stored instead of having hard copies. As of 2019, electronic wills are recognized in Arizona, but there are some specific requirements for making them valid. For instance, you and your two witnesses must electronically sign the will, and it must contain a copy of your government-issued ID.
Which Types of Wills Are Not Recognized in Arizona?
Joint Will
Arizona does not recognize joint wills, so if you created one in another state, then you will need to update your estate plan.
A joint will is used by married couples to allow one spouse to leave their entire estate to the surviving spouse. Instead of having two separate wills, each spouse signs the same document. When both spouses pass away, the assets will transfer to someone that the couple names in the joint will.
However, joint wills are less common today than in the past, because they cannot be changed by the surviving spouse once the other spouse has passed. That means there’s no way to include future stepchildren, remove beneficiaries, or make other updates.
Instead of making a joint will, you can draft two separate wills that reference each other. These “mirror” or reciprocal wills accomplish the same thing as a joint will, but with the added ability to make updates. Separate wills also allow you to leave only some of your assets to your spouse instead of your entire estate.
Nuncupative Will
Another type of will that Arizona does not recognize is a nuncupative will. Also called an oral or deathbed will, a person creates this type of will by speaking their last wishes out loud before they die. Even when states do recognize nuncupative wills, they don’t usually hold up well in court. It’s best to write out your last wishes in one of the many other kinds of wills.
How to Make Sure You Create a Valid Will
No matter what type of will you choose, it’s important to make sure that it is properly recognized when the time comes. Most types of wills in Arizona must meet the following requirements:
- The testator (owner of the will) must be over the age of 18.
- The testator must be of sound mind.
- The will must be in writing.
- The will must be signed in the presence of at least two witnesses (who can not be beneficiaries).
- The testator must not have been coerced or persuaded to create the will.
Arizona Estate Planning Attorney
Choosing the best type of will depends on a variety of factors, such as the size of your estate, the types of assets you own, and more. If you’d like some help determining which type of will you need, the Phelps LaClair team is here for you. We can assist you with choosing, creating, or updating one or several wills that cover all of your needs. Call us at 480-892-2488 today to schedule a free consultation at one of our many convenient offices across the state.
Images used under creative commons license – commercial use (11/22/2022). Image by Michal Jarmoluk from Pixabay
