Types of Last Will & Testaments

by Carrie Ferland

Testators can use various types of wills to establish an estate plan. The most prevalent type is the written will, accepted in every state. However, not all testators have the opportunity to execute a written will that complies with statutory guidelines prior to passing, so state law began to recognize additional formats under certain circumstances. Not all types of wills are recognized in every state, so you should consult with an attorney before establishing any type of will.

The Written Will

The most common will is the written will, recognized in all 50 states, which the testator can either type or write by hand. Written wills must bear the testator’s signature at the bottom and the signature of at least two attesting witnesses, neither of whom should be named as a beneficiary in the will. Some states also allow testators to submit written wills to a notary public for notarization in lieu of witnesses, in which case the testator does not need to have any additional witnesses sign his will.

The Holographic Will

The holographic will, also called a “self-proofed” will, is a will written entirely by the testator’s own hand. Holographic wills do not require any attesting witnesses; instead, the testator merely signs the bottom of the will, at which point the will is valid. Because the testator does not execute a holographic will in the presence of any third-party witnesses, they are far easier to fake and thus few states will accept a holographic will as valid. In states where holographic wills are recognized, the surviving family is generally obliged to provide substantive evidence that the handwriting and signature on the will belong to the testator using other legal documents bearing the testator’s writing or signature.

The Nuncupative Will

The nuncupative or “oral” will is a will conveyed verbally by the testator. Nuncupative wills are rarely acknowledged under state law unless exigent circumstances prevented the testator from establishing a proper will. Most states, for example, will recognize nuncupative wills relayed by a military serviceman while actively engaging in battle, if the soldier was injured or dying and believed he would not have an opportunity to establish a will prior to passing. In this case, the soldier must verbally convey his final wishes to at least two of his comrades, who themselves must relay the will to the appropriate court within six months of the testator’s passing. Even if done correctly, however, the validity of a nuncupative will directly relies on the relaying person’s memory and trustworthiness. As a result, most states allow the testator’s surviving spouse or next of kin to overturn the will and opt for intestacy probate instead.

The “Deathbed” Will

The “deathbed” will is a will established and executed by the testator while she is facing imminent death. Deathbed wills must be in writing, but the testator is exempt from following the statutory format. Unlike other types, the deathbed will is not voided because it fails to address every requisite issue. However, the testator should include everything she considers important -- including administrator appointments, disposition of major assets and guardianship -- because anything not expressly described in the will is subject to intestacy probate. Deathbed wills have less stringent witness requirements; if the testator handwrites the will herself, she can self-proof it as she would a holographic will. If the testator has at least one attesting witness, the court will also ignore the two-witness requirement for written wills. The entire will could still be voided, however, if a claimant challenges the testator’s mental capacity at the time she established the will.