Leaving a last will and testament or a legal trust is a must for anyone with assets, but there are many types of wills and trusts to choose from. A will is a document that states what will become of your estate after you die. The matter of a will can get complicated when you get married, as there are more options to choose from. Conversations about creating a will can make for a tough discussion piece between spouses; no one wants to think of a time when the other’s not there. But it makes a lot of sense to push one through to avoid a mess for your heirs down the line. We’ll look at the main types of wills that there are to choose from, and go over the basics, benefits and drawbacks for each type.
This type of will is as basic as it gets, and is best suited for people with small and uncomplicated estates. It’s a single document that will outline where your assets should go after you die. A simple will includes who you are, who your beneficiaries are, who is to be the executor of your estate, what is to happen to any dependents, and what beneficiaries (humans and institutions) will be getting your assets. This is the go-to will for the majority of the population, and is generally what is thought of when the term “last will and testament” is used.
The drawbacks of this type of will are that wills are public and will go through probate (unlike trusts), and it may be too simple for those with larger and more complicated estates.
You will sometimes hear that spouses have prepared what is called a joint will. This simply means that a couple will have one will, and the surviving person will receive all the assets from the spouse that has passed. The catch with a joint will is that it serves as a contract until both people covered by the will agree to make changes to it. If one of the spouses dies, the will then becomes a permanent contract, and cannot be changed by the surviving spouse. The reason this will exists, typically, is in case the surviving spouse remarries and begins a new life, and would then like to leave the joint possessions to their new family rather than the family they had with their deceased spouse.
This type of will can be very limiting, as the surviving spouse won’t have the freedom to do what they want with the assets that are left to them. As well, the surviving spouse is unable to change the will to include new beneficiaries, or to remove other beneficiaries. If the surviving spouse becomes estranged from one of their children, and wishes to cut them out of the will, there is no way to do it. Many lawyers view this type of will as problematic, and when brought to court, the terms of the will do not always hold up.
Mutual wills are similar to joint wills, except that assets don’t just go to the parties on the will, they can be left to third parties. As well, instead of one document, like with a joint will, there are two documents drawn up—one for each person—and there is a legal agreement that the wills cannot be changed after one of the spouses dies. The mutual will does not have to exist solely between spouses; business partners and family members can draw up joint wills, too.
Like a joint will, a mutual will has its drawbacks, as it imposes a rigidity for the surviving person, and limits what they are able to do with their assets gained from the deceased person’s will.
Mirror Wills / Reciprocal Wills
These are identical wills for spouses that agree to leave everything to the surviving spouse, and in the event that both spouses pass away at the same time, there are agreed-upon beneficiaries. Mutual wills are like a simple will for couples, but only if they die at the same time. If one spouse dies, they leave everything to their surviving spouse, and that spouse is then able to draw up a different will to decide what to do with their assets once they pass away. Reciprocal wills have the advantage of leaving the surviving spouse with freedom to do what they wish with their assets, but the drawback is that there is no guarantee that the surviving spouse will wish to leave any assets to the children of the deceased spouse.
In the even that the deceased person “had a living trust”, most of their assets would’ve been transferred to their trust, and the trust will be distributed once they have died or been mentally incapacitated (depending on the terms of the trust). However, if the deceased person had other assets that were not yet moved into the trust, they will have a pour-over will, which will state that any additional assets not in the trust will be moved to the trust upon their death. The drawback of a pour-over will is that the period to disburse your assets to beneficiaries will be drawn out, as the additional assets will have to go through probate.
The Bottom Line
If you’re considering a will, take the step of talking to an attorney to discuss your personal situation and decide what are the best alternatives before deciding on any specific direction. Wills and trusts are very necessary if you want to make things easier for your loved ones when you’re no longer here, but you’ll have to make sure you find the right one for you.