If you asked five random people to describe what happens when you go through the process of signing a will, you are likely to get five answers that, for the most part, are fairly similar.
Jump ahead to these sections:
- 1. Witnessed Will or Statutory Will
- 2. Holographic Will
- 3. Nuncupative Will or Oral Will
- 4. Online Will or Form Will
- 5. Electronic Will or E-Will
- 6. Notarized Will
Most people who describe signing a will include the following four things in their description:
- There is a legal document with lots of legal words.
- Everyone sits around a conference table in a law office while someone signs the will.
- The person signing claims to be “of sound mind.”
- The person signs in front of witnesses.
Generally speaking, all of these answers are correct. One or all these things could happen at a will-signing. The reason these are usually the four things that everyone describes, however, is that everyone usually thinks of only one kind of will — a “witnessed” will.
But most people do not know that there are six different kinds of wills, and they all work differently with different rules in different states.
Here are six different types of wills that may be available in your state and how they work.
Post-planning tip: If you are the executor for a deceased loved one, you have more than just the type of will to think about. Handling their unfinished business can be overwhelming without a way to organize your process. We have a post-loss checklist that will help you ensure that your loved one's family, estate, and other affairs are taken care of.
1. Witnessed Will or Statutory Will
The most common type of will is a witnessed will, also called a statutory will. As these names suggest, this type of will requires witnesses and the rules for it are provided by statute in every state.
Although each state may require its own specific details for executing a witnessed will or any other kind of will, a witnessed will generally require the following things:
- In writing: With very few exceptions for states that recognize oral wills, every will must be in writing. This is a long-standing requirement for wills to prevent fraud.
- A date: Some states require that a will be dated, but not every will must have a date. As a practical matter, including a date on a will serves to clarify any confusion or contest involving the prioritization of any other drafts of wills that may be found.
- Testamentary intent: In every will, the testator, or the person writing the will, must intend that the document they are signing serve as their last will and testament. There may be an occasion in which someone signs a document not intending it to be a will but the court treats it as one. Usually, the testator must have testamentary intent for the will to be valid.
- Witnesses: Every state requires witnesses (for witnessed wills). The standard number of witnesses required is two, but there have been states that have required more. Each state also has specific rules regarding witnesses to a will and these rules vary from state to state.
- Signatures: For almost every will, the testator must sign the will. As with most other rules, there may be specific rules with regard to how a testator signs their will, and these rules also vary state by state.
In addition to requiring a testator’s signature, required witnesses also must sign. In some states that require notarization, the notary must sign as well.
Finally, if the will contains a self-proving affidavit, which is a fancy way of saying that there were witnesses watching the witnesses sign the will, then the witnesses of the witnesses must sign the affidavit.
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2. Holographic Will
A holographic will is one that is written entirely in the handwriting of the testator. Not every state recognizes holographic wills because, with no witnesses, there is a greater likelihood of fraud. However, for the states that recognize them, a holographic will generally requires:
- Handwriting: Most states that recognize holographic wills require that the will be entirely in the handwriting of the testator. This includes every part of the will. However, some states recognizing holographic wills have adopted a more flexible approach to the handwriting requirement. These states allow for just the material portions of the will to be in the handwriting of the testator, and the rest may be in a typed font. The material portions of the will consist of:
- The identity of the property to be transferred
- The identity of the beneficiaries
- Date: Under the more flexible approach, a date is not required.
- Signature: Because there are no witnesses for a holographic will, only the testator signs the will. If the will is ever contested, others may have to testify that the signature on the will is really the testator’s signature.
3. Nuncupative Will or Oral Will
Some states accept wills that are not in writing, at least initially. There are only a few states that allow oral wills (also called nuncupative wills). These are wills that the testators do not write down on paper or type on a computer. Rather, they orally state their wishes for the distribution of their property when they die.
Oral wills usually occur when someone is close to death and, because they may be too ill to write their will, they simply state what they want to do with their property.
Perhaps as family members gather around their loved one during their final hours, the testator orally states that they would like one of the family members to have a particular item of personal property. When such declarations occur, some states allow a court to accept this as the person’s last will and testament.
However, as with all other wills, certain rules must be followed. The testator’s declaration must be:
- Associated with an illness
- Reduced to writing within a specified time
If all of these elements occur, a court could accept the testator’s statements as an oral will in states that recognize this concept of wills.
4. Online Will or Form Will
An online will or a form will is a will that you can find on a website for any online will service. The service provides a pre-drafted form will designed to accommodate the applicable laws in your state. The form provides blank spaces for you to fill in relevant information, like the names of your executors and beneficiaries, what property you want to bequest to others, and any information material to the will.
Some services allow you to complete your will entirely online and print it out. You also can find those that let you print the document and fill it out by hand. Because these are not holographic wills, they require witnesses.
5. Electronic Will or E-Will
Electronic wills (e-wills) are identified by the ability to execute electronic signatures on the computer. A standard witnessed will that is executed with electronic signatures may be referred to as an e-will and an online or form will that incorporates electronic signatures could be considered an e-will.
E-wills offer the convenience of not having to print out a document and sign it, perhaps in the presence of an attorney or at two different times in the presence of different witnesses. Only a few states have adopted this concept, but after the COVID-19 pandemic, more states are sure to follow.
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6. Notarized Will
The COVID-19 pandemic has forced estate planners to accommodate clients who need to execute legal documents, like wills, from home. In response to this need, the governors of every state have issued temporary executive orders allowing for Remote Online Notarization (RON).
RON simply allows the testator, witnesses, and notaries to conduct a traditional will-signing online. The process is conducted via two-way-audio- and video-conferencing so that the witnesses and notary do not have to be physically present together but can see and hear the testator sign the document, and likewise with each other.
The will can then be signed electronically and even digitally stored, so the will never even has to be printed out to be legal.
With every state experimenting with RON because of the pandemic, you will see RON available in many more states after the crisis passes.
Consider All the Options for Having a Will
If you like the tradition of formality when it comes to signing legal documents, it is likely that it will always be available to you.
The legal industry has done its part by providing at least six different options for finalizing a legally valid last will and testament. The responsibility is now yours to decide which convenient method of signing a will is right for you.
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