Understanding the Different Types of Wills

Posted On February 22, 2024

In the basic sense of the term, a will is a document that is made up by a person, or several people, to spell out how final affairs should be taken care of once they have passed away. Each will must meet a set standard that is determined by the state in which a person lives. And if poorly crafted, the will may not be useful in a court of law, especially if contested. 

To draft a will, there is a lot of information that is collected upfront.  Figuring out executors, beneficiaries, assets, debts, and the distribution of your estate is essential to the seamless administration of your estate when the time comes. The will drafting process should be thorough enough to cover most situations in life, but everyone has different circumstances.  Your needs, the nature of your estate, and even the way you interact with potential heirs all affect how your will should be drafted in life, and how your assets are distributed after your passing.

When setting up a will, it is necessary to first figure out the type of will that best suits your needs. At New York Legacy Lawyers, our team of New York estate planning lawyers is ready to assist you in determining the best type of will for your needs. With our experience and attention to detail, we will guide you through the process of securing your assets and protecting your loved ones. Contact us today at (718) 713-8080 to schedule a consultation.

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The Simple Will

This type of will dictates how property from a person’s (testator’s) estate is to be distributed. This will is usually created by a person that has a straightforward financial makeup. It is simple enough that the testator can make it out themselves with the occasional guidance of a lawyer to avoid mistakes. It includes the testator’s name, address if they were married or not, and a list of instructions spelling out how all assets are to be distributed. It is also be typed and not handwritten to avoid the issue of forgery. The will names a person responsible for executing the will, the executor. Moreover, it also has a section that determines where minor children are to be placed. The testator will need to date and sign the will in front of witnesses for it to become binding and legal.

The Testamentary Trust in Your Will

The testamentary trust is a structure you can set up that will smooth the task of responsibly administering all funds and property that are named in a trust identified within the will. For instance, a person might set up a “spendthrift trust” for someone that is not financially responsible enough to manage their assets due to age or financial immaturity. The solution in your will is to name someone responsible as the administrator of the trust that you had previously setup with the help of an estate planning attorney.  Once the trust recipient (beneficiary) has met certain conditions, usually they reach a certain age, the contents of the trust are distributed to them..

The Joint Will

This type of will is created by two testators that have decided to leave their property one to another. The way that this kind of will works is that the person who dies last is the one that gets everything. Beyond that, a joint-will also spells out what happens to the estate once the second person passes away. The will becomes permanent once one of the testators dies. Which makes sense, since the trigger of the will, a death of one of the testators, has occurred. If both testators are living, then the will can be dissolved or recreated. However, it can only be changed at the consent of both testators.

The Living Will

This kind of will does not deal with monetary or property issues. In fact, it’s not a Will as you would understand it; instead, it is a valuable tool for your family or trusted friends to utilize while you’re still alive. A living will provides healthcare professionals and trusted friends and family the instructions a person needs when they are unconscious or unable to speak or coherently make decisions.

A living will is beneficial for when a person is near death or unable to make decisions for their self-care. For example, if a person were hooked up to a breathing machine and the family was conflicted on whether to keep the person on life support, they could (or would) seek guidance from the wishes of the person on life support – via their living will.

Types of Wills Description
Simple Will Dictates distribution of property from a testator’s estate. Created by individuals with straightforward finances. Includes testator’s name, address, marital status, and asset distribution instructions. Typed to avoid forgery. Names an executor and determines placement of minor children. Requires testator’s signature in front of witnesses.
Testamentary Trust Structure within a will to administer assets in a trust. Ensures responsible management for beneficiaries who may be financially immature or of a certain age. Names a trust administrator. Contents distributed to beneficiary upon meeting specific conditions.
Joint Will Created by two testators leaving property to each other. Survivor inherits everything. Specifies estate distribution upon second testator’s death. Becomes permanent after first testator’s death. Can be dissolved or recreated only with both testators’ consent.
Living Will Not a traditional will. Provides instructions for healthcare professionals and trusted individuals when testator is unable to make decisions. Helps guide self-care decisions when near death or incapacitated. Offers guidance on life support continuation based on testator’s wishes.

What are the Four Major Components of a Will?

In New York, it is mandatory for a will to be in written form, requiring the testator’s signature, and the attestation of two individuals who are at least 18 years old. It’s important to note that beneficiaries named in the will cannot serve as witnesses to ensure its validity. If an unsuitable witness is used, it can result in the permanent invalidation of the will. Meeting the legal criteria for witnesses is typically challenging for blood relatives.

While there are a few exceptions to these requirements, they are rare. A nuncupative will, spoken aloud or recorded in the presence of at least two witnesses, is one such exception. Another exception is a holographic will, entirely handwritten by the testator, which doesn’t require any witnesses. However, both holographic and nuncupative wills are generally not preferred because they don’t provide the same level of authenticity as written and authenticated wills, and they are considered legally valid only under exceptional circumstances.

One such circumstance is when a member of the armed forces or an accompanying person, such as a reporter, drafts the will during a military conflict. In such cases, a holographic will lose its validity one year after the testator leaves military service, serving as a measure of last resort. The other exception is when a mariner drafts the Will while at sea, which becomes void three years after its establishment.

To ensure that your will satisfies the required components, it is important to get the help of an experienced New York estate planning attorney. An attorney can guide you on the necessary guidelines and ensure that your wishes are reflected in the relevant documents.

Getting Professional Guidance on Wills

If you are looking to establish a will, then all of us at Yana Feldman & Associates, PLLC can help you. We specialize in estate planning and elder law. We desire to help families like yours to take care of the things that matter.

Call us today at (718) 713-8080 or contact us here for more information.