Understanding The Different Types Of Wills

A Last Will and Testament is an essential component of any comprehensive estate plan. While most American adults are likely aware of the importance of Wills, many are unaware of the multitude of different types of Wills and the specific characteristics of each. To learn more about the different types of Wills and get knowledgeable advice in choosing the type of Will that is right for your needs, consider working with an estate planning attorney. Loughlin Law, P.A. offers custom consultations to individuals throughout Florida, so call 561-559-6214 today to book your appointment.

Legal Terms for Understanding Wills

Individuals reviewing the various types of Wills in order to select the most appropriate type of document for their personal estate plans are likely to encounter a number of terms along the way that are commonly used in estate planning and probate considerations, but rarely appear in other contexts. A brief overview of some of the most commonly used terms can make navigating the wealth of information available online and elsewhere much easier.

Estate planning terms commonly used in discussing Wills include:

• Testator: The individual who creates a Will to express their wishes regarding how their estate should be handled after their death
• Estate: The total of all the property, from financial assets such as investment accounts to personal belongings such as clothing, that an individual leaves behind at death
• Decedent: A deceased person (in probate, usually the decedent is the person whose estate is being administered; a decedent may or may not also be a testator)
• Beneficiary: A beneficiary is anyone named in an estate planning document, such as a Will or a Trust, to receive a portion of the decedent’s estate
• Trust: An estate planning tool used for transferring property outside a Will; some types of Wills are used in combination with specific types of trusts to create a tailored system for the transfer of assets
• Personal representative: The person responsible for carrying out the administration of a decedent’s estate, typically in accordance with the terms set out in the decedent’s Will; also called the Executor in some states

A variety of other terms may apply in specific contexts, including for highly customized types of Wills.

Simple Will

A Simple Will is the type most people are likely to call to mind when they hear that someone has created their Last Will and Testament, or that a bereaved family is preparing to “read the Will.” This type of Will is a written document that identifies the testator’s possessions and indicates the parties to whom the testator wishes each piece of property (whether “real” property, such as a family home or farm, or “personal” property, such as valuables and keepsakes) to go. Often one beneficiary may receive several items of personal property; it is also very common, even in a Simple Will, for large assets, such as retirement savings or real estate, to have their value divided among multiple beneficiaries.

While individuals preparing all of the documentation they will need to draft a comprehensive Simple Will often wonder whether “simple” is a term that belongs in estate planning, a Simple Will does not involve any of the potential complexities that arise with Pour-Over Wills, Joint Wills, or other types of Wills used to address specialized concerns. To be legally valid, a Simple Will will must be drafted and attested in accordance with the requirements of the testator’s jurisdiction, and in most cases those rules can be expected to guide the distribution of the decedent’s assets throughout the probate process (note, however, that if you have moved recently you may wish to confirm how Wills attested in another jurisdiction are handled in your current location, or you can consider updating your Will). Florida residents can find the basic guidelines for creating a legally valid Simple Will under Florida Probate Code § 732.502.

Joint Will

In some instances two people will choose to write a single Will in which they together direct the disposition of their property. This type of Will can most effectively be streamlined when the two testators own most of their property jointly, and for practical reasons the testators of a Joint Will are generally a married couple. Even more than other types of Wills, Joint Wills tend to contain explicit provision for the “surviving spouse” – whichever of the partners outlives the other – to enjoy the use of the property throughout his or her own lifetime, with direction provided for how the personal representative of the estate should distribute the remaining property once both of the testators have passed away.

Pour-Over Will

A Pour-Over Will is used in conjunction with a revocable living trust. Typically the purpose of a Pour-Over Will is to minimize the size of the probate estate (defined as the total value of all assets required to go through probate) and streamline the probate process, although as a Will this document cannot avoid probate altogether. A member of the estate planning team at Loughlin Law, P.A. may be able to help you determine whether a Pour-Over Will makes sense for your situation.

Establishing the Living Trust for a Pour-Over Will

To use a Pour-Over Will as part of a comprehensive estate plan, the testator first sets up a revocable living trust, and generally speaking the testator – who is also the grantor of the trust – will aim to place as much of their total wealth in that trust as is practical. Sometimes the grantor may make exceptions for assets that can easily be transferred to loved ones outside of probate by other means, such as payable-on-death or transfer-on-death beneficiary designations. Because the trust is a revocable trust, the grantor retains full use of the assets in the trust throughout his or her lifetime. The grantor also has the flexibility to change the terms of the trust or update its beneficiary designations and appointed trustees – with the proviso that whatever terms are active in the trust at the time of the grantor’s death will stand in perpetuity.

The revocable living trust will automatically become irrevocable upon the grantor’s death. This function is standard for living trusts, and because the assets contained in the trust are exempt from probate, these estate planning tools are widely used with different types of Wills to reduce the total size and complexity of the probate estate (the assets that must go through the probate process).

Directing the Disposition of Assets in a Pour-Over Will

Placing all of anyone’s property – especially personal belongings and keepsakes that may have limited monetary value but a great deal of meaning for an individual’s loved ones – can be a difficult and complicated undertaking, so it is not unusual for individuals to be concerned about the possibility of “leftovers” remaining at the time of their death. A Pour-Over Will attempts to account for this eventuality by naming the now-irrevocable trust as the sole beneficiary of the testator’s estate, and directing the personal representative to “pour over” into the trust any property remaining after the decedent’s final accounts have been settled. The terms of the trust, rather than those of the Will, will then dictate how property will be distributed to the decedent’s loved ones, who are designated as the successor beneficiaries of the trust, rather than being named in the Will.

Oral and Handwritten Wills

The most appropriate type of Will for a given individual will depend on the specifics of his or her situation. However, there are a few types of Wills on which estate planning attorneys generally try to discourage their clients from relying due to their high risk of invalidity and the potential difficulties these Wills can pose during probate. Oral, or “nuncupative,” Wills are not legally valid in Florida because they cannot be signed, as required by Fla. Rev. Stat. § 732.502 (2024). Handwritten Wills, except for holographic Wills (Wills written exclusively in the testator’s own handwriting, which precludes the possibility of witness signatures) are considered valid, according to 732.502(2), as long as they have been properly signed and witnessed – but in most cases estate planning attorneys advise against relying on handwritten documents whenever possible.

Generally speaking, it is preferable to plan ahead and draft a legally valid Will that expresses your wishes clearly and with consideration for the details your estate’s personal representative will need to know in order to see that those wishes are fulfilled. Once the Will has been properly signed and witnessed, you may even wish to consider having the Will “self-proved” by sworn statements before an officer “authorized to administer oaths” under Fla. Rev. Stat. § 732.503 (2024), to ensure your own peace of mind.

Consult With a Florida Probate and Estate Planning Lawyer

If you are preparing to draft and execute a Last Will and Testament, you have many different types of Wills from which to choose. Consider working with an estate planning lawyer to make your selections and ensure that the final documents are designed to streamline the probate process and accurately convey your wishes. Call Loughlin Law, P.A. at 561-559-6214 to schedule a consultation with a member of our Florida estate planning and probate team.