There are basically 3 different types of wills: (1) written formalized wills, (2) holographic wills, and (3) oral wills (also known as non-cupative wills). All states recognize written formalized wills, but not all states recognize holographic and oral wills. Let’s go over each of these in a little more detail.
1. Written Formalized Wills
A written formalized will is a written will, signed by the testator, witnessed by 2 to 3 witnesses, and attested to. These are the vast majority of all wills, and lawyers create these wills for testators.
2. Holographic Wills (not all states recognize these)
A holographic will is a handwritten will; it is not created on a word processor. A holographic will is defined as a (i) dated, (ii) signed, and (iii) handwritten will in the handwriting of the testator with donative intent. The BIG EXCEPTION of holographic wills is that they are not witnessed and attested to. Remember, this means that no witnesses are required for a holographic will. To illustrate, let’s use a hypothetical.
Assume that Tom the testator is stranded on a deserted island and on the brink of starving to death. Tom gathers the strength to carve into a tree the following: "I, Tom, devise all my property to my best friend, Al." Then Tom signs his name with a "T" and dates it "8-18-09" under the words. Later, Tom’s body is found next to the tree. Tom is survived by his wife and three children. If the state in which Tom lives recognizes holographic wills, there is a chance that much or all of Tom’s property would go to Al, instead of his wife and children. Now, this is an extreme example, but if the probate court determines that Tom’s donative intent was written into the side of the tree, those words would operate as a holographic will. As you can see, donative intent is very important.
3. Oral Wills
Only about 5 states recognize oral wills (at the time of this writing), and even for the states that do recognize oral wills, the requirements are very strict. Let’s go over those requirements.
5 Requirements for an Oral Will:
- Testator must have been in impending and immediate peril and fear for his or her life
- Testator must die from the peril;
- Statements of testator must be heard by 2 or more witnesses;
- The 2 witnesses must reduce the oral statements into writing within 10 days; and
- The writing (by the 2 witnesses) must be introduced to probate court within 6 months of testator’s death
Additional Consideration:
Oral wills only transfer personal property. Real property (e.g. someone’s home) cannot be transferred by an oral will because the Statute of Frauds does not allow it.
Electronic recordings are allowed in the state of Nevada to prove a will. Videotaping has been used by testators to record where the will was signed, witnessed and executed.
Next, we’ll go over the actual documents used in the will process. (Yes, lawyers will almost inevitably use more than one document in the will process – and there is good reason for it.)