UNDERSTANDING DIFFERENT TYPES OF WILLS: A Guide for Estate Planning

As an estate planning attorney, I often encounter clients who are unsure about the different types of wills available and which one might be best suited for their needs. Today, we'll explore three common types of wills: a Basic Last Will and Testament, Testamentary Trust Will, and Pour Over Will. We'll discuss their similarities, differences, and when you might choose one over the others.

1. Basic Last Will and Testament

A Last Will and Testament is the most basic and common type of will. It's a legal document that outlines how you want your assets distributed after your death.

Key features:

• Names beneficiaries and specifies what they will receive

• Appoints an executor to manage the estate

• Can name guardians for minor children

When to choose: This type of will is suitable for individuals with straightforward estates and clear ideas about asset distribution and don’t mind their estate going through the probate process.

2. Testamentary Trust Will

A Testamentary Trust Will is a more complex document that not only distributes assets but also establishes one or more trusts upon the testator's death.

Key features:

• Creates trusts that come into effect after death

• Allows for more control over asset distribution

• Can provide long-term financial management for beneficiaries

When to choose: This type is ideal for those who want to provide ongoing financial support to beneficiaries, especially minors, individuals with special needs, or even pets. If you do not mind the estate going through the probate process, this can be a good middle-ground between a basic last will and testament and a trust.

3. Pour Over Will

A Pour Over Will works in conjunction with a living trust. It's designed to capture any assets that weren't transferred into the trust during the testator's lifetime.

Key features:

• Acts as a safety net for assets not in the trust

• "Pours over" remaining assets into a pre-established living trust

• Helps maintain privacy of estate distribution

When to choose: This type is best for individuals who have already established (or are establishing at the same time) a living trust and want to ensure all assets are ultimately managed and distributed through the trust and not through the public probate process.

Similarities and Differences

Similarities:

• All three types serve as legal documents expressing the testator's wishes

• They all go through probate (though a Pour Over Will may minimize this process as its main purpose is to catch anything that was not funded into the living trust)

• Each allows for the appointment of an executor

Differences:

• Complexity: Last Will and Testament is the simplest, while Testamentary Trust Will is often the most complex

• Flexibility in asset management: Testamentary Trust Will offers the most control over long-term asset management

• Relationship to trusts: Pour Over Will is the only type designed to work specifically with a living trust

Choosing the Right Will

The choice between these types of wills depends on your specific circumstances:

• Choose a Last Will and Testament if you have a straightforward estate and want simple, direct distribution of assets and don’t mind your estate distributions being delayed.

• Opt for a Testamentary Trust Will if you need ongoing asset management for beneficiaries or have complex distribution wishes and don’t mind your estate distributions being delayed.

• Consider a Pour Over Will if you've already established, or are simultaneously establishing, a living trust and want to ensure all assets are ultimately managed through that living trust.

Remember, estate planning is not one-size-fits-all. It's crucial to consult with an experienced estate planning attorney to determine which type of will best suits your unique situation and goals.

Understanding the different types of wills is an important step in creating an effective estate plan. Whether you choose a Last Will and Testament, a Testamentary Trust Will, or a Pour Over Will, the key is to ensure that your wishes are clearly documented and legally binding. As always, professional legal advice is invaluable in navigating these important decisions.