Which Type of Will Is Right for You?

Coming out of the Covid-19 pandemic, wills are on the minds of many people. Just among 18- to 34-year-olds, the number of wills increased 63% last year, according to Caring.com, and for the first time, that group is even more likely to have one than 35- to 54-year-olds. “Everyone should have a will, even in the simple form. It avoids confusion and can specify who you want to take care of a pet, for example, if you should die,” says Karen Bussen, founder and chief executive at Farewelling. But what type is needed varies — married couples can file a joint will, a mutual will, or mirror wills, for instance. How do you know which is right? “It really depends on your assets, whether you have children, and a few other factors,” Bussen says.

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For most single people without a lot of assets, beneficiaries, or other complications, this is the go-to.

“By far the most common type of will,” Bussen calls it. “This is a typewritten document that is signed by witnesses and often notarized — not always required. It can be changed or rewritten at any point. One reason for its popularity is that it's just the most well-known option. You can create this type of will simply, even online, and in some cases for free.” 

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A joint will is shared by a married couple, and is best for spouses whose wishes align so well that neither will want something different in the event one dies long before the other.

Typically, joint wills are set up so when one spouse dies, everything goes to the other; when that spouse dies, everything gets carried out in the way they had agreed. These are simple and cheap, but “the downside is their inflexibility — it can be impossible to make changes to this type of will, even after one of the partners dies,” Bussen says. Due to their binding, irrevocable nature, states such as Florida and Wisconsin don’t allow these for residents. 

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A mutual will is similar to a joint will, but with identical documents — one for each spouse and a third signed by both parties committing their estate to their spouse. They’re often used by couples in their later years who agree on what to do with their assets even when there are children or other beneficiaries from a previous marriage.

“Generally, there is a second agreement where [partners] agree not to revoke them without the agreement of the other,” says Sherri M. Stinson, a lawyer in Palm Harbor, Florida, referring to the separate copies of a mutual will.

Related: 20 Ways to Prepare for the Loss of a Spouse

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The best solution for a married couple is a mirror will — though these can also be used by siblings, business partners, or other pairs.

So called because they mirror each other, these documents still allow each party to change their will without the other person’s permission. Often this happens if a couple splits up and remarries, or if one spouse dies first and the other remarries, Stinson says. 

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Some people still like handwritten documents. If this is you, check this out: a holographic will is simply a handwritten will. 

“If they are prepared in accordance with locally applicable law, then they are entitled to the same legal statute as any other will,” says Patrick Schmitt, co-founder and co-CEO of FreeWill, of the holographic approach. While they sound cheaper and easier than bringing in a lawyer, holographic wills are generally discouraged by experts. “It’s easy to make mistakes or leave contradictory and ambiguous wishes. Additionally, holographic wills are not legal in roughly half of the country,” Schmitt says.

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This is an oral will, generally used when someone is too sick or injured to put something in writing but wants to assign property to someone else.

Watch out. “The majority of states do not recognize these, and those that do only allow them in certain circumstances,” such as an active emergency, Stinson says. (Schmitt expands on that: “Nuncupative wills are often created by soldiers in active combat or sailors on the high seas.”) Wills composed under stress make it more likely there will be a mistake or oversight, resulting in legal confusion. In some cases, they “won't even be admitted for consideration” by a court, Bussen says. 

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A deathbed will can be oral or written, but — being holographic or nuncupative in nature — are rife with potential problems. “They may or may not meet the requirements for a valid will and are often challenged by family members if the will is a substantial departure from a prior estate plan,” Stinson says. 

Related: 18 Family Money Issues You Don't Want to Talk About But Really Should

The forward-thinking who expect to have time to redo their wills can keep their eyes on the all-digital approach. It’s not an officially recognized form yet in most states, but is predicted to be within the next few years. 

Digital wills are ”created, executed, and witnessed electronically, then stored in a digital format,” Schmitt says.

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For singles with enough assets, beneficiaries, and other financial complications that a simple will won’t do, or married people for whom those issues may be doubled, many wills operate in conjunction with a trust — an estate planning tool designed to protect assets and ensure they get to the right people.

Wills go into effect only when you die; a trust is active while you’re alive. “A major advantage of using a living trust is that the property it holds doesn’t have to pass through [the legal probate process] before your beneficiaries receive it. This may save your loved one time and money because probate can sometimes last many months, or even years, and involve significant court and attorney’s fees,” Schmitt says. Trusts take some maintenance: You have to transfer assets into them as you gain more throughout your life, so any property you own at the time of your death that didn’t make it in will have to go through probate after all “and be distributed according to your will.”

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If you have a trust, you may have to look into one of these as well.

Did some assets not make it into a trust before a death? A pour-over will cleans up those assets — called "pour-over" assets — and so are never used without a trust. Schmitt suggests it’s just as useful to think of this form of will as a safety net.

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A living will has nothing to do with property. “It's about your wishes if you should become medically incapacitated while you're alive. It may include or be attached to a health care proxy, which designates someone to make decisions on your behalf,” Bussen says. Take note: Each state has different regulations around living wills.

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