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Home » Not All Wills Are the Same — Which One Is Right for You?

Not All Wills Are the Same — Which One Is Right for You?

Wills and Trusts

Carmel estate planning attorney

For most people, a Will is the first estate planning document they create and it frequently remains the foundation of an estate plan even after that plan expands over the years. What you may not know is that all Wills are not created equal. There are, in fact, several different types of Wills from which to choose. To ensure that you execute the right type of Will for you, the Indianapolis estate planning attorneys at Frank & Kraft explain the different types of Wills.

  • Simple Will — a Simple Will is what you likely think of when you hear the term “Last Will and Testament.” This is what most people who have relatively modest, uncomplicated assets choose to execute. A Simple Will is appropriate to distribute a modest estate that includes uncomplicated assets. A Simple Will is also used to avoid intestate administration of the estate.
  • Pour-Over Will – you may decide to use a trust agreement to distribute the majority of your estate assets instead of a Last Will and Testament. If so, you will also need to execute a Pour-Over Will. A Pour-Over Will is used to “pour over” the estate assets into the trust at the time of your death. You will establish a testamentary trust that does not take effect until your death at which time the terms of the Pour-Over Will dictate that all estate assets be poured over into the trust. The terms of the trust are then used to actually hold and/or distribute your assets. A Pour-Over Will can even be used in conjunction with a living trust to catch any assets that did not make it into the trust prior to the Settlor’s (your) death.
  • Living Will – the term “Living Will” is a bit deceiving because this is not a document that facilitates the distribution of your estate. Instead, a Living Will is a type of advance directive that allows you to make healthcare decisions in advance in the event you are unable to make them yourself because of your own incapacity at some later point.
  • Holographic Will — A holographic Will is a written document that you signed and dated in your own handwriting, but that is not witnessed. Most states no longer consider a holographic Will to be valid, including the State of Indiana.
  • Oral or Nuncupative Will — A nuncupative Will is an oral, or spoken, Will that the Testator tells someone (a witness) prior to death. Indiana will only recognize a nuncupative Will if the following conditions are met:
    • The Will was made in imminent peril of death and the Testator dies from such peril
    • There were two disinterested witnesses and one witness needs to reduce the Will to writing within 30 days after the declaration.
    • The Will must be submitted to probate within 6 months after death.
    • The Will may only dispose of personal property not exceeding $1,000 in value, except persons in active military service in time of war can dispose of personal property not exceeding $10,000 in value.
  • Reciprocal or Joint Will — Spouses who intend to leave all of their property to one another often create reciprocal or joint Wills. The surviving Testator will inherit everything upon the death of the first spouse.  The idea is that when the surviving Testator passes away, the remaining estate will be distributed to the couple’s chosen beneficiaries, pursuant to the terms of the Will.  Reciprocal Wills may be changed by the Testator, even after the death of one spouse; however, if you execute a joint Will, the terms cannot be modified or revoked after the death of the first spouse.
  • Conditional or Contingent Will – this is a type of Will that only takes effect upon the occurrence of a condition or event. A common example of a condition is a beneficiary reaching the age of majority. If the condition is not met, the Will does not take effect and the Testator’s estate is probated as an intestate estate if no other valid Will exists.
  • International Will – if you own property in another country, you may need an international Will in order to avoid considerable confusion during the probate of your estate. In 1973, the International Institute for the Unification of Private Law (UNIDROIT) held a Convention Providing a Uniform Law on the Form of an International Will. Wills that meet the requirements are recognized by participating countries.

Contact Indianapolis Estate Planning Attorneys

For more information, please download our FREE estate planning worksheet. If you have additional questions or concerns about creating your Last WIll and Testament, contact an experienced Indianapolis estate planning attorney at Frank & Kraft by calling (317) 684-1100 to schedule an appointment.

Paul A. Kraft, Estate Planning Attorney
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