Statutory wills observe the standard language included in a state wills statute. It is typically a standardized form that the testator (the will creator) finalizes. Statutory wills are, therefore, straightforward.

They still need to be completed with all the required formalities, such as being signed, dated, and having the required witnesses. Not all states authorize the use of statutory wills.

What Is a Will?

A will is an estate planning document that lets a person, also known as a “testator,” designate how their property will be distributed upon their death. The property that may be disposed of in a will could include real or personal property.

Generally, in most states, for a will to be valid, the will must have each of the following:

  1. Be in writing.
  2. Be signed by the testator.
  3. Be witnessed by at least two or more competent witnesses. Further, the witnesses cannot typically be interested, meaning that they cannot be named in the will or otherwise have a stake in the will.
  4. The testator must have “testamentary capacity.”

The requirements mentioned above will vary depending on the testator’s state and what type of will is being created. For example, if the will is a holographic will, then it generally does not need to be witnessed, so long as the will is both written and signed by the testator.

What Is a Trust?

A trust is a legal instrument where one individual, known as a “trustee,” holds property for the benefit of another individual, known as a “beneficiary.” Unlike wills, trust property may be transferred before the testator’s death, which is known as an inter vivos trust.

Further, some trusts may be formed through the creation of a will. Although the prerequisites for creating a trust also differ by state, typically, the following elements must be present to form a valid trust:

  1. The individual forming the trust must have testamentary capacity, intend to create a trust, and the trust must typically be in writing;
  2. There must be “trust res,” which is specific and identifiable trust property (like a home);
  3. There must be an identifiable beneficiary; and
  4. The trust must be created for a proper purpose, i.e., it cannot be created for an unlawful reason, such as avoiding debts or obligations.

Some individuals may wish to create a trust for future unborn beneficiaries, like making a trust for future grandchildren. However, in that case, the grandchildren do not exist. If the trust is held for any potential grandchildren that might be born, the trust would likely be considered invalid.

What Are Some Pros and Cons of Statutory Wills?

Statutory wills have some benefits and drawbacks. They may be suitable for some individuals, but other individuals may find them either limiting or limited in their scope.

Some advantages of statutory wills include:

  • They are more straightforward and less complex than other will types
  • It can often be obtained easily
  • More negligible risk of violating state will requirements since the document follows the statutory language
  • They are typically painless to work with

Some disadvantages associated with statutory wills may include:

  • It may not cover all the testator’s needs due to its simplicity
  • Not permitted in every state
  • Can leave gaps in protecting the individual’s entire estate
  • It still requires some legal guidance for filling it out and executing it

Therefore, you should inquire first to see if statutory wills are permitted in your state. If they aren’t, it likely means that such a will won’t be accepted in your jurisdiction. This can lead to legal issues or will contests in the future. If you are uncertain, you may want to draft your own will to know for sure that you’re covering all the items in your estate.

Furthermore, just because a person can get a statutory will form doesn’t mean they’re qualified to make a will. The individual must be of legal age and have the mental capacity to create a will.

What Is a Non-Statutory Will?

Non-statutory wills are those wills that don’t precisely follow the state will requirements. Some jurisdictions allow non-statutory wills, provided that they do not conflict with the state requirements. This may sometimes apply, for instance, to living wills. Again, these distinctions will be different in each area and may also be subject to change over time.

What Is a Living Will?

Living wills are demands you leave for your family and your physician should you become so ill that you cannot make healthcare decisions. They are also known as health care directives.

Living wills are not just for elderly adults but can serve a purpose for everyone. No one plans on being in an auto accident or getting divorced, but it happens, and there are things you can do to soften the blow when it happens. A living will does the same.

There are several excellent reasons you can benefit from making a living will. For instance:

  • You may be physically or mentally incapacitated and unable to express yourself when the time comes to make a judgment;
  • Your family may not agree with your wishes for yourself, either continuing or terminating life support against your wishes;
  • You can help your family feel like they have made the right judgment if you write it in a document for them in advance; and
  • A living will often protects the physician or hospital, so they are not liable for honoring your last request.

Living wills permit you to control situations such as being placed on aggressive life support. It can also help you keep your rights to medical care if you have a chance of recovery. Your rights to get pain medicine, therapy, rehabilitation, or other care for your comfort are also protected by living wills.

Living wills are not the same thing as assisted suicide. It is not against the law to let nature follow its course if you refuse life support in a living will. You will be making all final determinations for yourself, based on a physician’s belief that you have only a slight chance of rehabilitation or recovery beyond the life support system.

How Do I Create a Living Will?

Each state has its regulations governing the creation of living wills. Most states demand, just as with a regular will, that you sign the document in the presence of one or two witnesses. The signatures may or may not need to be notarized, depending on the rules in your area. In addition, there may be laws in your state restricting who may act as a witness.

Ideally, it is best to create a living will as early as possible. This will help ensure that you still have the physical and mental capacity to formulate the terms in the document according to what you want. Suppose you have been diagnosed with a new medical or physical condition. In that case, it is best to create a living will before the condition progresses to the point that you become incapacitated.

Do I Need a Lawyer for Help With a Statutory Will?

Statutory wills can sometimes be helpful, but they may not be ideal in every situation. You may wish to hire an will lawyer to help draft and modify a will. An attorney can provide you with expert legal advice on creating your will and can represent you in court if a lawsuit surfaces in connection with your will.