By: Shaina Case
Do the varying types of “wills” that may be associated with an estate plan have you confused? Not all “wills” do the same thing, each serving a very distinct purpose. Read on to learn the basic distinguishing features and be sure to meet with your estate planning attorney prior to executing any of these legal documents to ensure they are properly suited for you and your naturally unique circumstances:
Living Wills. Unlike the wills discussed below, which become effective only upon the testator’s death, living wills terminate upon the grantor’s death. This is because living wills are only in effect during the grantor’s life, generally, at any time the grantor is incapacitated. The living will provides instructions as to the type of medical treatment or life-saving measures wanted should the grantor become unable to communicate those wishes for herself. The living will is often contained within the same document as the power of attorney for healthcare directives, but these can also be created through two separate documents.
Simple Wills. Simple wills are most often used when all that is needed is direction on how to distribute simple assets from the probate estate to the testator’s beneficiaries, heirs, and devisees. Simple wills are good for fairly straight-forward asset and family arrangements. As long as the nature of the assets and family relationships are relatively uncomplicated, a simple will is likely sufficient to avoid probate and properly distribute the estate. Simple wills are also important in designating guardians for minor children, identifying the testator’s family and marital status, appointing an executor, and sometimes expressing wishes for burial arrangements.
Testamentary Trust Wills. A testamentary trust will includes provisions that place a portion of the estate into a trust upon the testator’s death, rather than distributing the assets outright. Based on the terms of the testamentary trust, assets are distributed to the testator’s beneficiaries through a trustee who controls those assets. For testamentary trusts to be created, however, the assets being placed into trust must first go through probate, meaning that testamentary trusts should be strategically used so that a formal probate is not required in order for the trust to be established.
Pour-Over Wills. Pour-over, or spill over, wills accompany a trust-centered plan directing that all assets not otherwise in the trust be transferred into the trust at the time of testator’s death. The pour-over will also provides for the designation of guardians for minor children, identifies the testator’s family and marital status, appoints an executor, and sometimes expresses wishes for burial arrangements.