Understanding Wills: Types, Common Mistakes, and Safe Storage

Learn about the different types of wills, what not to include in one, and how to store yours below. You can also discover which additional legal documents are essential in your estate planning and can help your loved ones avoid the expense and stress of probate. 

Note: The following is not intended as legal advice. An attorney is a valuable resource for answering critical questions about your estate planning. Creating legal documents before you need them is the best way to ensure that your wishes are carried out. Some specialized planning websites, like Trust & Will, can also be helpful when planning.

Types of Wills Explained

Witnessed Will (Statutory Will)

This is the most commonly used and legally recognized type of will. It is typed and signed in front of two witnesses. A witnessed will is valid in all 50 states and is considered the gold standard for estate planning.

Holographic Will

A holographic will is handwritten and signed by the person making it (the testator). While some states accept holographic wills, others do not, due to concerns about verifying authenticity and understanding the testator's intent.

Nuncupative Will (Oral Will)

Oral wills are spoken rather than written and typically made in emergency or end-of-life situations. Only a few states recognize them, and even then, they must meet strict criteria, such as having witnesses present when the declaration is made.

Online or Form Will

These wills are created using digital templates or software. They offer convenience, but must still be printed, signed, and witnessed according to state laws to be valid.

Electronic Will (E-Will)

An e-will is created and signed electronically. These are gaining popularity, but legality depends on your state’s specific laws regarding digital signatures and remote witnesses.

Notarized Will

Some states allow notarized wills in place of or in addition to having witnesses. A notarized will can help strengthen its legitimacy and reduce the chances of being contested.

What Not to Include in Your Will

Assets with Designated Beneficiaries

Items like retirement accounts, life insurance policies, and payable-on-death bank accounts have named beneficiaries and pass directly to them, regardless of what your will says. Including them in your will can cause confusion or legal issues.

Jointly Owned Property

If you co-own property with someone else with rights of survivorship, your share automatically goes to the surviving owner. Wills do not override this type of joint ownership.

Funeral Instructions

Because wills are often read after the funeral has occurred, it’s better to communicate your funeral wishes through other means, such as a separate written document or by informing family and your executor in advance.

Conditional Gifts

Leaving assets on the condition that someone meets specific requirements — like marrying, divorcing, or changing religious beliefs — can be seen as legally questionable or unenforceable. Courts may strike down these clauses.

Provisions for Pets

Pets are legally considered property and can’t inherit money or assets. Instead, name a pet guardian in your will and consider setting up a pet trust to cover care expenses.

Illegal or Unrealistic Requests

Any request that breaks the law or is impossible to fulfill, such as leaving money to a nonexistent organization, should be avoided. These could invalidate part or all of your will.

Safely Storing Your Will

Store It at Home (Securely)

Keeping your will at home offers easy access, but it also comes with risks such as fire, flooding, or theft. Use a waterproof and fireproof safe, and let someone trustworthy know how to access it.

Leave It With Your Attorney

Storing your will with the attorney who helped draft it is a secure and common choice. It also ensures quick access for your executor when the time comes.

Use a Safe Deposit Box

While very secure, safe deposit boxes can present legal and logistical challenges after death. Make sure your executor or another trusted person has the necessary legal permission to open it.

Register or File It With the Probate Court

In some states, you can file your will with the local probate court or a will registry. This adds a level of protection and ensures that the original document can be found when needed.

Inform Your Executor

Regardless of where you store your will, always tell your executor and a few trusted loved ones where to find it. A well-written will is only helpful if it can be located and executed.

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