Basic Will Definitions

When meeting with an estate planning attorney, most new clients will be thrown a great deal of legal jargon describing different types of estate plans. Hopefully, the attorney will thoroughly explain all the options.  However, having a basic, working knowledge of the jargon will aid anyone in creating their estate plan. Here are some of the basic definitions of different types of wills a person needs to be aware of and, unless specified, Virginia, Maryland and the District of Columbia recognize some form of the type of will is denoted:

  • Oral Will – is a will that has been delivered orally to witnesses, as opposed to the usual form of a written wills. Oral wills are only recognized in a few states.  Generally, oral wills require a presence of fear of death.  Oral wills only apply to personal property. Maryland does not recognize oral wills and Virginia and DC do but under extremely strict requirements
  • Holographic Will – – is a will and testament that has been entirely handwritten and signed by the testator. It does not meet the normal validation requirements of a will that must be signed by witnesses attesting to the validity of the testator’s signature and intent.  Many states recognize the use of holographic wills but only under certain conditions.  Virginia, Maryland and DC each recognize use of holographic but each has specific criteria for acceptance of a holographic will.
  • Joint Will – is a single document executed by more than one person, usually husband and wife, to pass their estates using identical provisions for each spouse. In most joint wills, a couple bequeaths all their property to each other. Upon the death of the surviving spouse, the surviving spouse’s property passes according to provisions that were agreed upon by both spouses and contained in the joint will executed by both of them.  A joint will is in effect unless the surviving spouse revokes the will.
  • Mutual Wills –  are any two (or more) wills which are mutually binding, such that following the first death the survivor is constrained in his or her ability to dispose of his or her property by the agreement he or she made with the deceased. A surviving spouse that cancels the will would be considered breaching a contract.
  • Mirror Wills – is prepared when a couple want to make almost identical Wills leaving, for example, everything to each other respectively and thereafter to the children, or where there are no children, to a named beneficiary. They must be individual Wills, so in effect they are separate legal documents with similar content.  It is also known as a “sweetheart” will.
  • Conditional/Contingent Will – Conditional wills only go into effect when a certain act or condition happens.  For example, Brewster’s Million when Monty Brewster needed to spend $30 million to inherit $300 million would be a conditional will.
  • SelfProving Will – is not a will but a self-proving affidavit attached to a Will that certifies the witnesses and testator properly signed the Will. A self-proving will makes it easy for the court to accept the document as the true, original document, avoiding the delay and cost of locating witnesses at the time of probate. Only Virginia uses self-proving affidavits.
  • Testamentary Trust – or testamentary will is a trust which is created through the probating of the will and is distinguishable from an inter vivos trust, which is created during the settlor’s lifetime. Testamentary trust literally means a trust in a will.  A will may contain more than one testamentary trust, and may address all or any portion of the estate.
  • Revocable Living Trust – or also called an inter vivos trust, revocable trust, loving trust or family trust is an agreement that determines how a person’s property is to be managed and distributed during his or her lifetime and beyond.  A revocable living trust separates out the equity title and beneficial title of property to limit the impact of probate.
  • Pour-Over Will – is a particular type of will used in conjunction with a revocable living trust. This kind of will “pours” any property the deceased still owned at the time of death into the trust that the person set up during his or her life.
  • Codicil – a codicil is an addition to a will. It’s usually another document and used if you don’t want to write a completely new will but want to make minor changes to the will.
Being familiar with the definition behind the estate planning term will go a long way to helping a person decide what type of estate plan works for them.
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About Chris Guest

I am a trust and estate planning attorney working in the Washington, DC metro area. I offer comprehensive estate planning, trust administration, probate services and general business counseling for accountants, attorneys, business owners, consultants, federal and local government employees, retirees, other business professionals and other individuals.
This entry was posted in Estate Planning, General Information, Terminology/Definitions, Trusts, Wills, Wills. Bookmark the permalink.

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