Each state has formal requirements for preparing and executing a will. The person making the will is called the testator. Generally, the testator must declare that the document that is being signed is the testator's will. The signature must be witnessed by a minimum of two or three witnesses, who must also sign the will in the presence of the other witnesses. Each state has slightly different wording for the testator's and the witnesses' signatures.
Are There Other Types of Wills?
A will that is handwritten and signed by the testator, but has not been witnessed, is called a holographic will. Few states recognize holographic wills and only where all statutory requirements are followed. Oral wills, also called noncupative wills, are only recognized in a few states and only under compelling situations such as when made by a soldier dying in wartime.
A self-proving will is one that is witnessed and executed as required by the state's laws, and it is also signed and witnessed in the presence of a notary public. The benefit of a self-proving will is that it is not necessary to obtain statements from the witnesses at the time the will is probated. A self-proving will saves a great deal of time and effort where it turns out that one or more witnesses cannot be located or are themselves deceased.
Based upon its contents, a will may be categorized as one of the following:
- A simple will
- A tax-planned will
- A pour-over will
A simple will leaves the entire estate (the testator's property covered by the will) to one or more named beneficiaries. No portion of the estate is left in trust.
A trust is made when property is transferred to the management of one person (the trustee) for the benefit of others (trust beneficiaries). A tax-planned will generally disposes of all or a portion of the estate to one or more testamentary trusts, and not directly to the beneficiaries. A testamentary trust is created by the will and it comes into existence when the testator dies. The trusts are used to avoid or minimize death taxes. A pour-over will generally leaves assets to an inter vivos trust - a trust that was created by the testator during their lifetime.
A living will is not used to dispose of property after death. Rather, it expresses your views on the use of artificial life support techniques and other life-sustaining medical procedures. A living will is needed when you are no longer competent to make these decisions and become terminally ill or permanently unconscious. A health care proxy gives another individual the right to make these decisions for you. Living wills and health care proxies are often signed at the same time that a will is executed.
Picking Your Executor
An executor is the person responsible for carrying out the directions in your will. The same considerations that are important in choosing a trustee should be used when deciding upon the executor of your estate. First and foremost, you should choose an individual or institution that you trust.
An executor needs to gather assets, pay debts and expenses, and distribute assets to beneficiaries. The executor does not need to invest assets other than on a temporary basis. On the other hand, a major role of a trustee is to prudently invest the trust assets so as to be fair to all of the beneficiaries. The role of an executor is limited in duration while a trustee might serve for many generations.