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.

Protect your loved ones. Start My Estate Plan

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.

Protect your loved ones. Start My Estate Plan
Washington State Laws on Wills
 

References

Related articles

California Law on Wills

By establishing a will, you can avoid administration of your estate under California intestate succession laws. However, merely writing a will is not sufficient for the state to recognize your wishes -- your will must comply with the guidelines defined by the California Probate Code for the state to acknowledge its validity. While a will that overlooks only one requirement may still uphold in court, you risk the court putting aside your entire will if you fail to comply with these guidelines.

Handwritten Last Will & Testaments

Each state has its own laws on what constitutes a valid last will and testament. In most states, a will must be in writing, but whether it is typed or handwritten generally doesn't matter if the will meets all the other requirements for validity in the state. About half of states, however, recognize a special type of handwritten will.

How to Prove a Will When Your Subscribing Witnesses Are All Dead or Unavailable

Wills can be an effective estate planning tool for distributing property after your death. But, for its terms to be honored when you pass away, most states require someone who was present at the time the will was signed to attest to the document's validity. Knowing how a will can be verified if all witnesses either pass away or cannot be found will help ensure that your property passes according to your wishes.

LegalZoom. Legal help is here. Start Here. Wills. Trusts. Attorney help.

Related articles

The Format for a Legal Will

While probate laws defining the format for a valid will vary from state to state, most states acknowledge at least two ...

Last Will & Testament of the Terminally Ill

Because a last will and testament disposes of property when someone dies, courts are careful to make sure that a will ...

Is a Hand-Written Notarized Will Legal?

Your will can direct the distribution of your property after your death, name someone you trust to manage your estate ...

Forms of Wills

Several forms of will are recognized in the United States, with each individual state having its own rules on what ...

Browse by category
Ready to Begin? GET STARTED