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What Type of Will Is Right for Your North Dakota Estate Plan? - Thompson Law, PLLC

Thompson Law, PLLC

Estate & Business Planning Attorneys in Sioux Falls, South Dakota

Sioux Falls

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Grand Forks

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Estate Planning Attorneys Licensed in South Dakota, North Dakota, Minnesota, Iowa, and Nebraska

What Type of Will Is Right for Your North Dakota Estate Plan?

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Will North Dakota

When you think about estate planning, the first document that likely comes to mind is a Last Will and Testament. Whether you have already created your own Will or are still considering one, you probably understand that a Will plays a crucial role in determining how your assets will be distributed after your passing. What you may not realize, however, is that not all Wills are the same. There are several different types of Wills, each designed to serve specific purposes and meet various legal needs. To help you select the right Will for your North Dakota estate plan, an attorney at Thompson Law explains the various types of Wills from which to choose.

What Is a Last Will and Testament?

A Last Will and Testament is a legally binding document that outlines how an individual, known as the Testator, wants their estate to be distributed after death. A Will allows the Testator to specify beneficiaries, name an Executor to manage the estate, and, if necessary, appoint a guardian for minor children. Without a valid Will or trust in place, North Dakota intestate succession laws will determine how your assets are distributed, which may not align with your wishes.

Types of Wills Recognized in North Dakota

While all Wills serve the general purpose of directing asset distribution, different types of Wills exist to accommodate specific situations. The most commonly used Wills include:

  • Simple Will: A Simple Will is a basic estate planning document suitable for individuals with uncomplicated estates. It outlines how assets should be distributed and names an Executor to handle the estate administration process. This type of Will works well for those with modest assets and straightforward family dynamics; however, it may not be sufficient for individuals with complex estates, blended families, or specific tax planning needs. The key benefits of a Simple Will include:
    • Providing clear instructions for distributing assets.
    • Naming an Executor to manage estate affairs.
    • Ensuring your estate avoids intestate succession laws.
    • Ideal for straightforward estate plans.
  • Pour-Over Will: A Pour-Over Will is used in conjunction with a trust. If you have a trust-based estate plan, this type of Will ensures that any assets not transferred into the trust during your lifetime are “poured over” into the trust upon your death. This helps maintain consistency in asset distribution and ensures that all assets are handled according to the trust’s terms. Reasons to use a Pour-Over Will include:
    • It serves as a safety net to transfer remaining assets into a trust.
    • It can help avoid probate for certain assets.
    • Ensuring that assets are managed according to trust terms.
  • Living Will: Despite its name, a Living Will does not function as a traditional Will that distributes assets. Instead, it is an advance directive that allows you to document your healthcare preferences in case you become incapacitated. This document informs medical providers and loved ones of your wishes regarding life-sustaining treatment, organ donation, and other critical healthcare decisions. Important features of a Living Will include:
    • Outlines your medical treatment preferences.
    • Helping to avoid family disputes over healthcare decisions.
    • Provides guidance for doctors and caregivers.
  • Holographic and Oral Wills: A holographic Will is a handwritten document created and signed by the Testator without witnesses. A oral Will, or nuncupative Will, is spoken rather than written, requiring witnesses to confirm its validity. While many states do not recognize these Wills, North Dakota allows holographic Wills if the signature and material portions of the document are in the Testator’s handwriting. A holographic will in North Dakota does not have to be witnessed in order to be valid. North Dakota does not recognize oral (nuncupative) Wills.
  • Reciprocal and Joint Wills: These Wills are commonly created by spouses who want to leave everything to one another. When Reciprocal Wills are used, each spouse creates a Will leaving their estate to the other. The surviving spouse can later amend their Will after the first spouse’s death. With Joint Wills, a single Will is created and signed by both spouses, with terms that cannot be changed after one spouse dies. Reciprocal Wills offer flexibility to the surviving spouse while Joint Wills lock in estate distribution, preventing changes after one spouse’s death but may not accommodate future changes in family or financial circumstances.
  • Conditional or Contingent Will: This type of Will only becomes effective if a specified condition is met. If the condition does not occur, the Will is considered void, and the estate may be distributed according to another valid Will or intestate succession laws. Common “conditions” that may trigger a Conditional or Contingent Will to become effective include:
    • A beneficiary reaching a certain age before inheriting assets.
    • A specific event, such as marriage or graduation, must occur before the Will takes effect.
  • International Will: If you own assets in multiple countries, an International Will can help streamline estate administration across different legal systems. The International Institute for the Unification of Private Law (UNIDROIT) established guidelines in 1973 to ensure that participating countries recognize Wills that meet specific criteria. Among the potential benefits of executing an International Will are:
    • Reduces legal conflicts in cross-border estate planning.
    • Ensures foreign assets are handled according to your wishes.
    • Provides a standardized format accepted by many countries.

Choosing the Right Will for Your Needs

Selecting the appropriate type of Will depends on your personal circumstances, financial situation, and long-term goals. While you should always consult with an experienced estate planning attorney when making important decisions such as which type of Will to execute, some factors to consider when deciding which Will is right for you include:

  • Complexity of Your Estate: If you have significant assets, a trust-based plan with a Pour-Over Will may be more suitable.
  • Marital Status: Couples may benefit from Reciprocal or Joint Wills but should carefully consider the long-term implications.
  • Healthcare Preferences: A Living Will is essential for outlining your medical treatment wishes.
  • Geographic Considerations: If you own property in another country, an International Will may be necessary.
  • Desire for Flexibility: Some Wills, such as Simple or Reciprocal Wills, allow modifications, while others, like Joint Wills, do not.

Can We Help You Choose the Right Will for Your North Dakota Estate Plan?

Please join us for an upcoming FREE seminar or webinar. If you would like assistance choosing the right type of Will for your North Dakota estate plan, contact a North Dakota and Minnesota estate planning attorney at Thompson Law by calling 605-362-9100 to schedule an appointment.

Raymond German, Estate Planning Attorney
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