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What Are The Different Types Of Wills?

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Article by Oren Ross

Photography by Oren Ross

The law gets more complex every year, so that even if you need a basic last will and testament, you now face a variety of choices. Understanding the different kinds of wills isn’t necessarily difficult, and an Atlanta estate planning attorney can help you create the will you need.

No two wills or estate plans are the same. When you create your will or estate plan, you’ll need the personalized advice that only a Georgia estate planning lawyer can provide. What follows is a brief discussion of the various types of wills now in use in Georgia and across the U.S.

What is a “Simple” Will?

A simple last will and testament is a basic will with no special stipulations or clauses. It spells out how your property and assets are to be divided and distributed upon your death, and it can designate the person who becomes the guardian of your minor children if you die unexpectedly.

You can also choose the person (called an executor or personal representative) who will manage your property and assets and make sure that your instructions are followed after your death. You can even name someone to care for your pets.

However, a last will and testament is subject to the probate process, and that’s a judicial procedure, so your will becomes part of the public record and your personal financial business becomes public. Thus, you may want to consider an alternative to a last will and testament.

What is a “Deathbed” Will?

Deathbed wills are just what they sound like – wills created by persons who are facing death. You can write a deathbed last will and testament manually, you can type it out, or you can have another person type it for your signature.

Deathbed wills are not a good idea. They’re usually filled with mistakes – and omissions – because they’re written in haste. Deathbed wills cause all kinds of legal difficulties, they’re easier to challenge, and it will be harder, after you’re gone, to prove a deathbed will’s validity.

Creating a will takes time, thoughtful consideration, and guidance from the right Atlanta estate planning lawyer. It is never too soon to write your will or to set up an estate plan with an attorney’s help. What you must not do is wait until the last possible moment to write a will.

What is a “Nuncupative” Will?

A nuncupative will is usually a deathbed will, but it is spoken rather than written. The term originally referred to the dying wishes of soldiers and sailors in wartime, but today any will that is spoken rather than written is “nuncupative.”

The rules for nuncupative wills are different in each state, but in Georgia, since 1998, nuncupative wills usually are not valid. They are allowed to deal with only a limited amount of personal property, and they are only valid in limited circumstances in this state.

What is a “Holographic” Will?

A holographic will is not something from Star Trek. It is simply a last will and testament written without an attorney or witnesses. In fact, it’s another bad idea.

Without an attorney’s guidance or the signatures of witnesses, holographic wills cause all kinds of legal difficulties. Holographic wills are not valid in the State of Georgia.

What is a Joint Will? What is a Mutual Will?

A joint will is a single document that a couple – a married couple, for example – creates to leave their properties and assets to one another. When one spouse passes away, the other spouse inherits the entire estate.

After the second spouse dies, the estate goes to someone the couple mutually named as an heir. Mutual wills accomplish the same goals as a joint will, although mutual wills are two separate documents that are signed by both spouses.

The problem with joint wills and mutual wills is that after the first spouse’s death, the surviving spouse cannot change any of the terms of the will, even if the surviving spouse remarries and has additional children or stepchildren.

What is a Mirror Will?

An alternative to the joint or mutual will is the “mirror” will, also called a reciprocal will. Mirror wills are two separate wills, so if you wish, you can designate part of your estate to someone other than your spouse. The big advantage with a mirror will is the ability to change it over time.

That’s important if you divorce, remarry, or go through other personal or family changes in the years ahead. The right Atlanta last will and testament attorney can help you and your spouse to create the mirror wills that are just right for you and your family.

What is a “Living” Will?

To clear up any possible confusion, you should know that a “living” will really is not a last will and testament document at all, even though the names are similar.

A living will is a document that spells out your instructions for your end-of-life medical care if you are unable at that time to speak for yourself. A living will gives you control over your medical decisions even if you are in a coma, catastrophically injured, or terminally ill.

Again, it’s not a traditional will, but a living will can be important to your family and a vital part of your estate plan. An Atlanta estate planning attorney can discuss living wills with you – and other options like a medical power of attorney – when you create your will or estate plan.

What is a Living Trust?

A living trust isn’t really a will, either. Instead, a living trust transfers the ownership of your selected assets to the trust itself, so the trust actually owns those assets while you’re still alive.

The document also specifies how your property and assets will be distributed when that time comes. A living trust is an estate planning document that can help your family save time and money, avoid probate, and secure the privacy that a last will and testament can’t.

How Will an Estate Planning Lawyer Help You?

The right Georgia estate planning lawyer can set up a living trust, a last will and testament, or a comprehensive estate plan that helps your family move positively and constructively into the future.

As mentioned previously, estate planning should not be rushed, but because no one can know what will happen tomorrow, the time to begin planning your estate – and the time to schedule a consultation with an estate planning attorney – is today. Call Oren Ross & Associates at 678-250-4281, or find us online at orenrosslaw.com.