Kinds of Last Wills & Testaments

by Beverly Bird
Laws vary from state to state as to what kinds of wills are acceptable.

Laws vary from state to state as to what kinds of wills are acceptable.

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A last will and testament most commonly takes the form of a statutory will, either drawn up by an attorney or written by the maker to comply with the laws of the state where he lives. If you choose to write your will yourself, you can purchase state-specific forms online that conform with your state's laws, preprinted with spaces where you can write in the specifics of your personal situation. Many states accept other kinds of wills, as well.

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Self-Proved Will

A self-proved will is not actually a will at all, but a separate affidavit signed by the maker of the will and the state’s required number of witnesses, usually two. The affidavit is a notarized statement attesting that the will is authentic. When attached to the will and the will enters into probate, it eliminates the need for your witnesses to appear in court and testify that the will is yours. If two witnesses have already signed your will, some states accept this as automatically self-proving. As of 2010, only Ohio, Vermont, Maryland and the District of Columbia do not accept self-proved wills in any form.

Pour-over Will

A pour-over will is used in connection with a revocable living trust. You create the trust during your lifetime and transfer your assets into it, shifting ownership from your name into the name of the trust. When you die, the trust owns everything, not you, so there is no need for these items of property to go through the probate process. Theoretically, a trust takes the place of a will. But problems arise if you neglect or overlook the transfer of any asset to the trust. When you die, anything that falls outside the trust must still go through probate as though you never had a will or estate plan at all, disbursed according to the laws of your state, not necessarily what you might want. A pour-over will is a simple will that directs any property not already in the trust to move to the trust when you die. Then it is disbursed according to the terms you’ve established within the trust. It can also address issues that your trust can’t, such as guardianship of any minor children.

Holographic Will

Holographic wills are handwritten wills. The legal definition of a holographic will is that it is unwitnessed, as well. However, some states will accept handwritten wills if they are witnessed. Other states, though fewer than half, will accept them even if they are unwitnessed. In some states, holographic wills are not valid at all. In states that do accept them, witnesses are usually required to appear in court after your death to testify either that your handwriting made the will or that they watched you write it and they signed it as witnesses.

Nuncupative Wills

A nuncupative will, also sometimes called a deathbed will, is one where you orally speak your bequests to one or more witnesses. Very few states recognize nuncupative wills, and most that do limit them to members of the United States military or merchant marines, individuals more normally placed in perilous situations. Some states require that the witnesses commit the will to writing within a certain amount of time and submit it to probate court. Most limit the value of property that can be bequeathed this way.