The Format for a Legal Will

By Carrie Ferland

While probate laws defining the format for a valid will vary from state to state, most states acknowledge at least two different types of wills as valid. All states recognize the written will -- the most common format -- which is signed by the testator and two additional witnesses. However, technology and creativity makes way for newer formats, especially when the testator does not have access to the materials needed to execute a traditional will, and state law has evolved to recognize other, less common formats. It is important to note that, with the exception of the written will, not every state recognizes all formats as valid. Testators should always review their residential state’s probate code to determine what formats are acceptable before establishing a final will.

While probate laws defining the format for a valid will vary from state to state, most states acknowledge at least two different types of wills as valid. All states recognize the written will -- the most common format -- which is signed by the testator and two additional witnesses. However, technology and creativity makes way for newer formats, especially when the testator does not have access to the materials needed to execute a traditional will, and state law has evolved to recognize other, less common formats. It is important to note that, with the exception of the written will, not every state recognizes all formats as valid. Testators should always review their residential state’s probate code to determine what formats are acceptable before establishing a final will.

Written Wills

A written will is any will, whether typed or handwritten, expressed on paper. Written wills must be signed by the testator in the presence of at least two disinterested witnesses, who must also sign the will themselves. Some states permit testators to seek notarization from a notary public in lieu of witnesses, in which case only one notary’s signature is required for the will to be valid. All 50 states recognize the validity of written and witnessed wills, provided the testator is at least 18 years of age and was of sound mind at the time he executed the will.

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Self-Proved Wills

A self-proved will, also called a “holographic” will, is a will written entirely by the hand of the testator. The testator then signs the bottom of the will without retaining any attesting witnesses. Holographic wills are common amongst testators who have little or no relatives or friends who can serve as a witness, or who lived in an isolated area with no access to someone who can serve as witness. While many states now recognize holographic wills as valid, some still require at least one additional witness’s signature to appear on handwritten wills.

Nuncupative Wills

A nuncupative will is a will conveyed entirely by mouth -- that is, an oral will. Not all states recognize nuncupative wills, and in those that do, the courts require exigent circumstances. Typically, a nuncupative will conveyed by a person at sea -- such as a merchant marine or a sailor -- is the only oral will the state acknowledges. While state law varies, most states require that the testator verbally convey his will to at least two other persons who serve as his witnesses and that the versions he gives both witnesses are consistent with each other. Both witnesses must then establish the testator’s will in writing and submit the document to the court within six months after the testator’s passing or, if they are still at sea and unable to do so, as soon as they return to land and are able.

Videotaped Wills

A videotaped will is a video recording of the testator orally delivering his will. Videotaped wills have become even more popular with the wide availability of inexpensive digital camcorders and video recorders. Most states lack statutory recognition of videotaped wills and, of the states that do, many classify videotaped wills as nuncupative wills, requiring exigent circumstances before they will acknowledge the will. If the videotape is executed along with a written will, the written will is typically acknowledged as the “actual” will, especially if there are inconsistencies between the versions. If there is no written will, the court may void the validity of the videotape and administer the estate following intestacy guidelines.

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California Law on Wills

References

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Do Wills Have to Be Handwritten?

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