Estate PlanningEstate Planning DocumentsWhat Is a Nuncupative Will? Are Oral Wills Valid? (2023)

What Is a Nuncupative Will? Are Oral Wills Valid? (2023)

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Are you familiar with the term nuncupative will? It may sound like a complex legal term, but it refers to a type of oral will. A will that is made orally, rather than in writing.

This type of will was commonly used in the past when written communication was not as prevalent, but it is now considered outdated and not recognized as legal in most states. However, some states still allow for nuncupative wills under certain circumstances, such as when the individual is on their deathbed and unable to execute a written will.

But even in these cases, witness testimony is crucial to proving the testator’s intentions. It is always advisable to draft a written will with the help of an attorney to accurately reflect your wishes and avoid problematic scenarios in dividing property.

Stay tuned to learn more about nuncupative wills and where they are valid.

Reasons to Contest a Will

Introduction to Nuncupative Wills

When someone is on their deathbed and unable to write, they may speak their final wishes out loud to witnesses, hoping that their legacy will be upheld. This type of will is called a nuncupative will, also known as an oral or verbal will.

A nuncupative will is defined as a verbal will spoken by a dying individual when they are too sick to execute a written will. It originated when oral communication was the main form of expression and written communication was not as common.

A nuncupative will is not recognized as legal in most US jurisdictions. However, in states that do accept them, there are strict guidelines that must be followed. For example, the nuncupative will must be witnessed by two to three people and the testator must be of sound mind.

While nuncupative wills are only valid in a limited number of states under narrow circumstances, trusts can provide a more flexible and widely accepted option for estate planning.

Additionally, the assets of the deceased person are limited to the personal property equivalence of a specific dollar amount and a written will supersedes a nuncupative will.

Nuncupative Will oral will
Nuncupative Will oral will

Key Facts about Oral Wills (Nuncupative Wills)

  • Oral wills are also known as nuncupative wills.
  • Nuncupative wills are only valid in a limited number of states, including the District of Columbia.
  • They are considered legal only under narrow circumstances, such as during armed conflict or if the person is a mariner at sea.
  • A nuncupative will must be made verbally and in the presence of at least two witnesses who were present at the time the will was made.
  • The witnesses must bear witness to the testamentary words spoken by the person making the will.
  • The will is only valid if made by someone facing an impending peril, such as death from sickness.
  • The validity of an oral will expires after a certain period, usually 30 days after the person’s last sickness.
  • Oral wills are not valid if the person dies intestate, meaning without a valid will. What Happens When You Die Without a Will?

Estate Plan: What Is a Nuncupative Will, or Oral Will?

AKA an oral will or a verbal will, a nuncupative will is a will that is declared orally by a person who is gravely ill and has little time to live.

This type of will is not in writing, but spoken aloud and witnessed by two or three witnesses who are present at the time of declaration.

In most states, nuncupative wills are not recognized as legal, and written wills are required for the proper distribution of assets.

AKA An Oral Will, Or a Verbal Will

The spoken succession, also known as the vocal vow, may not hold legal weight in most states.

  • Oral wills are types of nuncupative wills that are delivered verbally to witnesses instead of being written down. They are usually given by people who are on their deathbed. However, nuncupative wills are recognized only in limited, narrow, and special circumstances.
  • In most states, a written will is required to transfer property, both real property and personal property, to beneficiaries.
  • Nuncupative wills are valid only if the testator is a person competent to make a will, and the witnesses testify to the will. Oral wills are subject to the deathbed exception, which means that the testator must believe that they’re about to die. Also, the statement must include the intention to make a will, the request for witnesses to testify to the will, and the testator must die from the perceived threat.
  • However, nuncupative wills are not valid for the transfer of real estate.

Define nuncupative will: what’s the nuncupative will meaning, and how does it differ from a written will? Let’s find out in the next section.

Define Nuncupative Will: What Is The Nuncupative Will Meaning

Have you ever wondered if your dying words could hold legal weight in distributing your assets to your loved ones?

A nuncupative will, also known as an oral or verbal will, is a type of will made in unusual circumstances, where a person gives oral instructions to distribute their property after death. Although not recognized in most US jurisdictions, some states allow nuncupative wills under certain conditions.

For example, North Carolina recognizes oral wills if the person believes death is imminent, witnesses testify, and the testator states their intention. However, a nuncupative will only apply to certain types of property, such as personal property up to a specific dollar amount.

If you decide to make a nuncupative will, keep in mind that witnesses are required, and there may be a time constraint to record the will. Additionally, the testator must be of sound mind and believe that death is imminent.

While video wills may seem like a good option, they are not a substitute for a nuncupative will because they are not witnessed. Remember, a nuncupative will does not need to be witnessed, but it must be proven by clear and convincing evidence, which may be difficult to do.

It’s important to note that drafting a written will with the assistance of an attorney is always advisable, even in life situations where a nuncupative will may be allowed.

A Nuncupative Will Does Not Need To Be Witnessed?

Nuncupative Will Nuncupative Will

Yes, a nuncupative will, also known as an oral will, typically needs to be witnessed in order to be considered valid. The specific requirements for witnesses may vary depending on the jurisdiction, but generally, at least two witnesses who were present at the making of the will must be able to bear witness to the testamentary words spoken by the testator (the person making the will).

The witnesses must also attest that the testator was of sound mind and under no undue influence or duress at the time the will was made. Additionally, some jurisdictions may require that the will be declared or dictated to a disinterested third party before the witnesses in order to ensure its validity.

It’s important to note that nuncupative wills are not legal in all states and are only considered valid in limited circumstances, typically related to situations where the testator is facing impending peril or is a mariner at sea. In general, it is recommended to have a written will as part of your estate plan to avoid potential disputes and ensure that your assets are distributed according to your wishes.

In order to ensure that your final wishes are properly documented and executed, it’s generally recommended that you create a written will with the assistance of an attorney.

Will a Video Will Hold Up In Court

Thinking of creating a video will? Think again. Videos don’t hold up in court as a legally binding will, according to legal expert Mary Randolph.

This means that even if you create a video will that clearly outlines your wishes, it won’t be considered valid unless it meets the witness requirements of a nuncupative will or the formalities of a holographic or witnessed will.

FactorAdmissibility of Video Will in Court
Legal Requirements> A video will must meet the legal requirements for a valid will, which typically include that the testator was of sound mind, acted voluntarily, and had the intention to make the will.
Execution and Witnessing> The video must be properly executed and witnessed according to the laws of the jurisdiction.
Additional Legal Requirements> There may be additional legal requirements for video wills, such as the need for a notary public to certify the will.
Authenticity> A video will may face challenges regarding its authenticity, especially if there are concerns about the testator’s capacity, the accuracy of the recording, or whether the video was made under duress or undue influence.
Consultation with Attorney> It’s recommended to consult with a qualified estate planning attorney to determine the best course of action for creating a legally valid and enforceable will.
> A written will can provide more certainty and clarity regarding the testator’s wishes and intentions.

Estate Planning Basics

Now that you understand the limitations of video wills, let’s explore where nuncupative wills are valid.

Nuncupative Will States – Where Are They Valid?

map of the states

Oh, so you’re curious about which states actually accept a verbal ‘last wish’ given on one’s deathbed as a legitimate will? Well, let’s just say you might have better luck trying to convince your cat to sign a legal document.

In fact, most states, including California and Florida, do not recognize nuncupative wills, also known as verbal wills, as legally binding. However, there are a few exceptions.

For example, North Carolina allows nuncupative wills if the testator believes they are about to die and two witnesses testify to the will. Additionally, New York and New Hampshire permit verbal wills for members of the armed forces during times of war or conflict.

It’s important to note that even in states where nuncupative wills are accepted, they come with strict requirements and limitations. For example, Ohio only recognizes them for personal property up to a specific dollar amount, and Missouri, North Carolina, Indiana, and Tennessee only permit them if the testator was in imminent peril of death when making the will and ultimately died as a result of it.

Nuncupative Will States – Where Are They Valid?
Alabama
Indiana
Kentucky
Louisiana
Mississippi
North Carolina
South Carolina
Tennessee
Texas
Virginia

Note: It’s important to consult with a qualified estate planning attorney in your jurisdiction to determine the legal requirements and validity of a nuncupative will, as the laws regarding these types of wills can vary widely from state to state.

In any case, creating a traditional written will and other estate planning documents, such as a power of attorney and advance healthcare directive, is highly recommended to ensure your wishes are carried out properly and legally. Additionally, remember that a will does not affect accounts with pay-on-death beneficiaries, retirement or investment accounts with beneficiary designations or life insurance policies.

Beware of Nuncupative Wills

Other Key Facts to Consider

  • Oral wills are sometimes called “deathbed wills.”
  • Oral wills are no longer valid in most states in the U.S.
  • A nuncupative will cannot dispose of real property or assets to be distributed outside the state’s jurisdiction.
  • State laws require that the person making the oral will have actual military or naval service or be in fear of impending peril or imminent death.
  • Some states require that the will be filed with a probate court within a certain time frame.
  • An oral will is not considered legal if the person making the will is under a disability or unable to verbalize their wishes.
  • If you have a simple estate plan, an oral will may help ensure your wishes are carried out in case of end-of-life sickness or injury.
  • Oral wills may be disputed in court and should be considered a last resort.
  • A written will is still the best option for most people and is required in most cases to avoid probate court issues.
FAQ frequently asked questions

Q: Are Nuncupative Wills legal?

A: Nuncupative Wills are not legal in many states in the United States. However, some states do recognize them under certain circumstances.

Q: What are some other names for Nuncupative Wills?

A: Nuncupative Wills are sometimes called “deathbed” or “dying declarations.”

Q: What happens to my assets if I pass away without a valid will?

A: If you pass away without a valid will, your assets will be distributed according to your state’s laws of intestacy. This means the state will determine who your heirs are and how your assets will be divided.

Q: Can members of the military make Nuncupative Wills?

A: Yes, members of the Armed Forces of the United States are allowed to make Nuncupative Wills under certain circumstances. For example, if a member is in active military service and is unable to make a written will, they may be permitted to make an oral will in the presence of a certain number of witnesses.

Final Thoughts

Now that you’ve learned about nuncupative wills, it’s crucial to understand that they’re an outdated and unreliable way to distribute your property after death. While they may have been useful in times when written communication wasn’t widely accessible, they’re no longer recognized as legal in most US jurisdictions.

Even in states where oral wills are allowed under certain circumstances, witness testimony is crucial to proving the testator’s intentions. To ensure that your wishes are accurately reflected and your property is distributed as you intend, it’s highly recommended to draft a written will with the help of an attorney.

This will not only prevent problematic scenarios in dividing property but also provide peace of mind knowing that your loved ones will be taken care of after you’re no longer here. Remember, it’s never too early to start planning for the future and protecting the ones you love.

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Note: The content provided in this article is for informational purposes only and should not be considered as financial or legal advice. Consult with a professional advisor or accountant for personalized guidance.

Michael Ryan
Michael Ryanhttps://michaelryanmoney.com/
Who Am I? I'm Michael Ryan, a retired financial planner turned personal financial coach. And author and found of blog. My advice is backed by decades of hands-on experience in finance and recognition in esteemed publications like US News & World Report, Business Insider, and Yahoo Finance. 'here'. Find answers to your financial questions, from budgeting to investing and retirement planning, on my blog michaelryanmoney.com. My mission is to democratize financial literacy for all.