Most people choose to create and execute a Last Will and Testament as their first estate planning document. That Will may serve as the entirety of their estate plan for many years to come or may serve as the foundation of a much larger and more expansive estate plan. Either way, your Will serves a vital role in your estate plan. As such, creating the right type of Will is important. With that in mind, a Murfreesboro estate planning attorney at Bennett | Michael | Hornsby helps you decide what type of Last Will and Testament is right for you and your estate plan.
What Is a Last Will and Testament?
A Last Will and Testament is a legally binding document that allows the Testator (the person executing the Will) determine who will inherit from his/her estate and exactly what will happen to estate assets after the Testator’s death. Additionally, the Testator appoints an Executor whose job is to oversee the probate (administration) of his/her estate and may nominate a guardian for minor children (if applicable) in a Will.
Is There More Than One Type of Will?
While the basic concept and function of a Last Will and Testament is always the same, there are different types of Wills. Choosing the right type of Will for you and your circumstances will help ensure that your Will works as intended. The various types of Wills available include:
- Simple Will. As the name implies, a simple Will is the most basic type of written Will. If you are unmarried and have a modest estate, you likely do not need anything more elaborate than a simple Will to ensure that you avoid leaving behind an intestate estate and that the assets you do leave behind are distributed according to your wishes.
- Holographic Will. A holographic Will is a handwritten Will that is not witnessed. Many states no longer recognize holographic Wills; however, the State of Tennessee does. Tennessee law will allow a holographic will if the signature and all its material provisions are in the handwriting of the Testator and the Testator’s handwriting is proved by two witnesses.
- Oral or Nuncupative Will. An oral Will (or “nuncupative” Will in legal terminology) is an oral, or spoken, Will that the Testator tells someone (a witness) prior to his/her death. Most states either do not recognize oral Wills or recognize them under very limited circumstances, as does the State of Tennessee. Tennessee law recognizes the validity of an oral Will under very limited circumstances and the Will may only dispose of up to $1,000 worth of personal property (or up to $10,000 is the Testator is active military, air or naval service in time of war). An oral Will cannot replace or revoke an existing Will and can only be made by a person in imminent peril of death, whether from illness or otherwise, and only if the Testator died as a result of the impending peril, and must be:
- Declared to be the Testator’s will by the Testator before two disinterested witnesses.
- Reduced to writing by or under the direction of one of the witnesses within 30 days after such declaration.
- Submitted for probate within six months after the death of the Testator.
- Reciprocal or Joint Will. Married couples often create reciprocal or joint Wills to ensure that the surviving spouse inherits everything. What remains of the combined estates is then passed down to children upon the death of the surviving spouse. An important difference between reciprocal and joint Wills is that a surviving spouse may modify or revoke a reciprocal Will after the death of the other spouse whereas a joint Will cannot be modified or revoked by the surviving spouse.
- Pour-Over Will. If you decide to use a trust as the primary mechanism for the distribution of your estate assets, you should still have a Pour Over Will in place. This type of Will is used to “pour over” assets not already in the trust into the trust at the time of your death. This ensures that recently purchased or overlooked assets make it into the trust.
- Living Will. A Living Will is not really a Will, despite the name because it does not dictate how estate assets are to be handled after your death. Instead, a Living Will is a type of advance directive that allows you to make healthcare decisions now in case you are unable to make them later because you are incapacitated.
- Conditional or Contingent Will. This type of Will only takes effect if a condition is met, or a specific contingency occurs. For example, you might create a conditional Will that takes effect when your youngest child reaches the age of majority or a contingent Will that takes effect when a child gets married.
- International Will. If you own property in another country, you will either need an International Will or you will need to create a separate Will that is valid in that country.
Contact a Murfreesboro Estate Planning Attorney
If you have additional questions or concerns about which type of Will is bets for your estate plan, consult with an experienced Murfreesboro estate planning attorney at Bennett | Michael | Hornsby as soon as possible. Contact the team today by calling 615-898-1560 to schedule your free appointment.