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Wills

45. Wills

The purpose of a will is to permit the living to provide for those who come after him or her. By willing their estates, individuals can control the way their property is distributed after their deaths. If an individual dies without a will and without heirs or relatives, however, the estate escheats to the state. A will is thus a way to keep the estate in the hands of family and/or loved ones, and out of the hands of the state.

Over the years, the law of wills developed into a very mechanical, strict set of rules generally uniform among states that safeguard against unscrupulous heirs who may forge or tamper with wills for financial gain. Virtually all states require the testator (the person making the will) to be over eighteen or an adult, the will must be typed or printed, and the only writing permitted on the document is the signature of the testator and witnesses.

Some noteworthy types of wills are nuncupative and holographic. Nuncupative wills are oral testaments with a very special, very limited purpose. Typically, the oral will has the power to dispose of only a limited amount of personal property. The original purpose of this type of will was to permit mortally injured soldiers or sailors to give gifts of personal property to their comrades-in-arms. This provision is still reflected in many of the nuncupative statutes; it permits a dying individual to grant specific bequests to friends who may have cared for him during his last injury. Only nineteen states still recognize nuncupative wills, and the number is slowly shrinking.

Holographic wills are testaments that are entirely handwritten instead of being typed or printed. They are generally not as formal as typed wills and are therefore more suspect by law, for a greedy heir may more easily be able to persuade the testator to hastily write out a will without the proper amount of counsel or reflection. It is for these reasons that holographic wills are looked upon with general disfavor, are subject to closer scrutiny, and are less commonly recognized than other wills.

Traditionally, the law of wills has been very slow to change but even it has begun to feel the impact of the computer revolution. Nevada, in 2001, added statutes that recognize electronic wills, apparently becoming the first state in the union to do so.

Table 45: Wills
StateCode SectionAge of TestatorNumber of WitnessesNuncupative (Oral Wills)Holographic Wills
ALABAMA43-8-130, et seq.18 years or older and of sound mindSigned by at least two persons, each of whom witnessed either the signing or testators acknowledgment of signature or of willNot recognizedNot recognized because of statutory requirement that every will must be witnessed and attested by at least two people; will in handwriting of testator and attested to by two witnesses is not considered holographic will
ALASKA13.12.501, et seq.18 years or older and of sound mind.Signed by at least 2 individuals, each of whom signs within a reasonable time after the witness witnesses either the signing of the will as described in (2) or the testators acknowledgment of signature or the will. Recognized as valid if signature and material provisions are in handwriting of testator; does not need to be witnessed.
ARIZONA14-2501, et seq.18 years or older and of sound mindSigned by at least two persons, each of whom signed within a reasonable time after that person witnessed testators acknowledgment of signature or of will.Not recognizedValid if signature and material provisions are in handwriting of testator; does not need to be witnessed (portions not in testators handwriting may not be established as testators will by extrinsic evidence of intent).
ARKANSAS28-25-101, et seq.18 years or older and of sound mindTwo or more attesting witnesses must sign at the request and in the presence of the testator. Testator shall declare to the attesting witnesses that instrument is his will.Not mentionedValid if entire body and signature is in handwriting of testator and evidence of three credible disinterested witnesses to handwriting
CALIFORNIAProb. §§6100, et seq.18 years or older and of sound mindAt least 2 persons present at the same time, witnessing either signing of will or testators acknowledgment and must understand that it is testators will.Not recognizedValid if signature and material provisions are in handwriting of testator; does not need witnesses; must show testamentary intent which can be shown by extrinsic evidence.
StateCode SectionAge of TestatorNumber of WitnessesNuncupative(Oral Wills)Holographic Wills
COLORADO15-11-501, et seq.18 years or older and of sound mindSigned by at least two generally competent persons, either before or after the testators death, each of whom signed within a reasonable time after he or she witnessed, in the conscious presence of the testator, either the signing or testators acknowledgment of signature or of will.Not recognizedValid whether or not there are witnesses if signature and material provisions are in handwriting of testator.
CONNECTICUT45a-250, et seq.18 years or older and of sound mindAttested by two witnesses, each of them subscribing in presence of testator.Invalid if executed in Connecticut.Executed in Connecticut is not admissible but valid if properly made outside the state according to the laws of that state.
DELAWARETit. 12 §201, et seq.18 years or older and of sound and diposing mind and memoryAttested and subscribed in testators presence by two or more credible, generally competent witnesses; need not be signed in presence of witnesses or that witnesses sign in the presence of each other.Not mentionedNot specified
DISTRICT OF COLUMBIA18-102, et seq.18 years or older and of sound and disposing mind and capable of executing a valid deed or contractAttested and subscribed in presence of testator by two credible witnesses.Oral will made after 1/1/1902 is not valid except that person in actual military or naval service or mariner at sea may create oral will if (a) oral will is proved by at least 2 individuals present at the making and were requested by the testator to bear witness that oral disposition was the last will and (b) will made during time of last illness of deceased and (c) substance of will reduced to writing 10 days after it was madeAttested and subscribed in the presence of testator by 2 witnesses, although they need not sign in each others presence or physically observe each others signature.
StateCode SectionAge of TestatorNumber of WitnessesNuncupative(Oral Wills)Holographic Wills
FLORIDA§§732.501, et seq.18 years and of sound mind, or emancipated minor and of sound mindSigned in presence of two attesting witnesses; witnesses must sign in presence of each other and testator.Not recognizedNot recognized; properly executed will in testators handwriting is not considered holographic will.
GEORGIA§§53-4-10, et seq.14 years and not laboring under some legal disability arising from a want of capacity or from a want of perfect liberty of action.Must be subscribed and attested in testators presence by two or more competent witnesses; testator must sign/acknowledge signature in presence of two witnesses. Not recognized
HAWAII§§560:2-501, et seq.18 years or older and of sound mindSigned by at least two individuals, each of whom signed within a reasonable time after the individual witnessed either the signing of the will or the testators acknowledgment of that signature or acknowledgment of will.Not recognizedA will that does not comply with subsection (a) is valid as a holographic will, whether or not witnessed, if the signature and material portions of document are in the testators handwriting.
IDAHO§§15-2-501, et seq.18 years or older or any emancipated minor and of sound mindSigned by two or more persons 18 yrs. or older, each of whom witnessed either the signing or testators acknowledgment of the signature or of the will.Not recognizedValid if signature and material provisions are in handwriting of testator; does not need witnesses.
ILLINOIS755 ILCS 5/4-1, et seq.18 years or older and of sound mind and memoryAttested in presence of testator by two or more credible witnesses (not necessarily in each others presence).Not validNot valid
StateCode SectionAge of TestatorNumber of WitnessesNuncupative(Oral Wills)Holographic Wills
INDIANA§§29-1-5-1, et seq.Any person of sound mind over 18 or who is younger and a member of the armed forces or U.S. merchant marine or allies of the U.S.Must be signed and acknowledged in presence of two or more witnesses; witnesses must sign in presence of testator and each other.Valid only if made in imminent peril of death and testator dies from such peril; need two disinterested witnesses; one witness needs to reduce to writing within 30 days after declaration; and must be submitted to probate within 6 months after death; may only dispose of personal property not exceeding $1,000 in value; except persons in active military service in time of war can dispose of personal property not exceeding $10,000 in value; does not revoke existing written willonly changed so as to give effect to the nuncupative will.No statutory provisions
IOWA§§633.264, et seq.Any person of full age and sound mindWitnessed, at testators request, by two competent (at least 16 yrs. old) witnesses who must sign in presence of testator and each other.Not authorizedNot valid unless executed as stated in §633.279
KANSAS§§59-601, et seq.Anyone of sound mind and possessing rights of majorityMust be attested and subscribed in presence of testator by two or more competent witnesses who saw testator subscribe or heard him acknowledge same.Made in last sickness, oral will is valid in respect to personal property if reduced to writing and subscribed by two competent, disinterested witnesses within 30 days after speaking the testamentary wordsNot recognized
StateCode SectionAge of TestatorNumber of WitnessesNuncupative(Oral Wills)Holographic Wills
KENTUCKY§§394.020, et seq.18 years or older and of sound mind (persons under 18 may obtain power specially given to that effect). However a parent, though under 18, may by will appoint a guardian for his/her child.If will is not wholly written by testator, subscription must be made or will acknowledged by testator in presence of at least two credible witnesses; witnesses must sign in presence of testator and each other.Not recognizedRecognized if wholly written by the testator
LOUISIANAC.C. Art. 1476, 1575, 1577, 1578, 1579, 1581To have the capacity to make a donation inter vivos or mortis causa, a person must also be able to comprehend generally the nature and consequences of the disposition that he is making. Minor over 16 can dispose only mortis causa (in prospect of death).Signed in presence of notary and two competent witnesses. Valid if entirely written, dated, and signed by testator; it is not subject to any other formality and may be made anywhere (even out-of-state).
MAINETit. 18-A §§2-501, et seq.18 years or older and of sound mindSigned by at least two persons, each of whom witnessed either the signing or testators acknowledgment of signature or of will.Not recognizedValid if signature and material provisions are in handwriting of testator; does not need to be witnessed.
MARYLANDEstates & Trusts §§4-101, et seq.18 years or older and legally competentMust be attested and signed in presence of testator by two or more credible witnesses.Not validValid if made outside U.S. by person serving in U.S. Armed Forces (no attesting witnesses necessary) but is void after one year after testators discharge unless testator has died or does not then possess testamentary capacity.
StateCode SectionAge of TestatorNumber of WitnessesNuncupative(Oral Wills)Holographic Wills
MASSACHUSETTSCh. 191§1, et seq.18 years or older and sound mindAttested and subscribed in testators presence by two or more competent witnessesSoldiers in actual service or mariner at sea may make nuncupative will of personal property.Not recognized
MICHIGANMCL §§700.2501, et seq.18 years or older and sound mindSigned by at least two competent persons, each of whom witnessed either the signing or testators acknowledgment of signature or of will.Not recognizedValid if dated and testators signature and material provisions are in testators handwriting; does not need witnesses.
MINNESOTA§§524.2-501, et seq.18 years or older and of sound mindSigned by at least two persons, each of whom signed within a reasonable time after witnessing either the signing or testators acknowledgment of signature or of will.Not recognizedNot recognized
MISSISSIPPI91-5-1, et seq.18 years or older and of sound and disposing mindAttested to by two or more credible witnesses in testators presenceMust be made in time of last illness of the deceased at his habitation or where he resided for 10 days prior to death (except when taken sick and dies from home before return to habitation). Value bequeathed cannot exceed $100 unless it be proved by two witnesses that testator(trix) called on some person present to take notice or bear testimony that such is his/her will. Will not received to probate after 6 months unless reduced to writing within 6 days after speaking the same.Must be testamentary in character, wholly written, dated, and signed by testator(trix).
StateCode SectionAge of TestatorNumber of WitnessesNuncupative(Oral Wills)Holographic Wills
MISSOURI474.310, et seq.18 years or older and of sound mind, or any emancipated minorMust be attested by two or more competent witnesses subscribing their names to the will in presence of testator.Valid only if made in imminent peril of death and death results, declared to be his will before two disinterested witnesses, reduced to writing under direction of one of witnesses within 30 days and submitted for probate within 6 months of death; can only dispose of personal property of no more than $500 and does not change or revoke existing will; may be revoked by another nuncupative will.No statutory or judicial pronouncement of validity
MONTANA72-2-521, et seq.18 years or older and of sound mindSigned by at least two persons, each of whom signed within a reasonable time after having witnessed either the signing or testators acknowledgment of signature or of will.Not recognizedValid, whether or not witnessed, if signature and material provisions are in testators handwriting.
NEBRASKA§§30-2326, et seq.18 years or older or anyone not a minor and of sound mindSigned by at least two individuals, each of whom witnessed either the signing or testators acknowledgment of signature or of the will.Not recognizedValid, whether or not witnessed, if signature, material provisions, and an indication of the date of signing are in handwriting of testator; in absence of such indication of date, if instrument is the only such instrument or contains no inconsistency with any like instrument or if date is determinable from contents, from extrinsic circumstances, or from any other evidence.
StateCode SectionAge of TestatorNumber of WitnessesNuncupative(Oral Wills)Holographic Wills
NEVADA [recognizes electronic wills (§133.085)]133.020, et seq.Every person of sound mind over 18.Attested by at least two competent witnesses subscribing their names to the will in presence of testator, unless electronic will.Not validValid if entirely written, dated, and signed in handwriting of testator. Can be made in or out of state and need not be witnessed; may dispose of all or part of estate, real or personal.
NEW HAMPSHIRE551:1, et seq.18 years or older or married and of sound mindAttested and subscribed in testators presence and at request of testator by two or more credible witnesses.Not valid where property exceeds in value $100, unless declared in presence of three witnesses, in last sickness, and in his usual dwelling (except where taken sick away from home and died before his return), or unless memo was reduced to writing within 6 days and presented to probate court within 6 months after making; also valid for soldier in actual military service or mariner or seaman at sea; may dispose of movables and personal estate.Not recognized
NEW JERSEY3B:3-1, et seq.18 years or older and of sound mindSigned by at least two people who witnessed signing or testators acknowledgment of the signature or of the will.Not recognizedValid whether or not witnessed if signature and material provisions are in testators handwriting.
NEW MEXICO45-2-501, et seq.Anyone who is 18 yrs. of age or older and of sound mindMust be signed by at least two individuals each of whom must sign in presence of testator and each other after each witnessed the signing of the will.Not recognizedNot recognized
StateCode SectionAge of TestatorNumber of WitnessesNuncupative(Oral Wills)Holographic Wills
NEW YORKEstates, Powers & Trusts §§3-1.1, et seq.18 years or older. and of sound mind and memorySigned at the end by testator or acknowledged in presence of two attesting witnesses; witnesses must attest to testators signature within 30 days, and at testators request, sign their names and residence addresses at the end of the will.Valid only if made by members of armed forces while in actual military or naval service during a war or other armed conflict, person who serves with or accompanies an armed force engaged in such activity, or mariner at seaSame provisions as for nuncupative wills and written entirely in testators handwriting.
NORTH CAROLINA§ 31-1, et seq.18 years or older and of sound mindAttested by at least two competent witnesses, each of whom must sign will in presence of testator but need not sign in presence of each other.Made by person in his last sickness or in such imminent peril of death and who does not survive such sickness or peril and declared to be his will before two competent witnesses simultaneously present and specially requested by him to bear witness thereto.Written entirely in testators handwriting and subscribed by testator and found after testators death among his valuable papers or in safe deposit box or other safe place or with some person under his authority for safekeeping; no witness required.
NORTH DAKOTA30.1-08-01, et seq.Any adult who is of sound mindSigned by at least two persons, each of whom signed within a reasonable time after witnessing either the signing of the will or the testators acknowledgment of signature or of will.Not recognizedValid as a holographic will, whether or not witnessed, if the signature and material portions of the document are in the testators handwriting.
OHIO2107.02, et seq.18 or over of sound mind and memory and not under restraintAttested and subscribed in presence of testator by two or more competent witnesses who saw testator subscribe or heard him acknowledge his signature.Valid if made in last sickness as to personal estate if reduced to writing and subscribed by two competent disinterested witnesses within 10 days after speaking; witnesses must prove that testator is of sound mind, memory, and not under restraint and he called upon some person present at the time the testamentary words were spoken to bear testimony that it is his will; must be offered to probate within 6 months after death.Valid as holographic will provided attested and subscribed in the presence of testator by two or more competent witnesses who saw testator subscribe or heard him acknowledge his signature.
StateCode SectionAge of TestatorNumber of WitnessesNuncupative(Oral Wills)Holographic Wills
OKLAHOMA84 §41, et seq.18 years or older and of sound mindTwo attesting witnesses signed in presence of testator at end of the will.Valid with following requirements: (1) no more than $1000; (2) must be proved by two witnesses present at making, one of whom was asked by testator to bear witness as such; (3) testator must have been in actual military service in field or duty at sea and in actual contemplation, fear, or peril of death or testator must have been in expectation of immediate death from injury received same day.Must be entirely written, dated, and signed by testators hand; need not be witnessed.
OREGON112.225, et seq.18 years or older or lawfully married and of sound mindAt least two witnesses who see testator sign will or hear him acknowledge signature and attest by signing their names to it.Not recognizedNot recognized
PENNSYLVANIATit. 20 §2501, et seq.18 years or older and of sound mindTwo witnesses signing will in presence of testator; testator must declare instrument to be his will in presence of witnesses.Not validNot recognized
RHODE ISLAND33-5-2, et seq.18 years or older and of sane mindMust be signed or acknowledged by testator in front of two or more witnesses present at same time who must attest and subscribe will in presence of testator.Not recognized except any soldier or airman in actual military service or any mariner or seaman at sea can dispose of his personal estate as he might have done under common law.Not recognized except any soldier or airman in actual military service or any mariner or seaman at sea can dispose of his personal estate as he might have done under common law.
SOUTH CAROLINA62-2-501, et seq.Sound mind and not a minorSigned by at least two persons each of whom witnessed either the signing or testators acknowledgment of signature or of will.No statutory recognition of soldiers and mariners wills of personalty nor nuncupative wills of personalty.Impliedly forbidden by statute unless specifically recognized by valid out-of-state execution or out-of-state probate.
StateCode SectionAge of TestatorNumber of WitnessesNuncupative(Oral Wills)Holographic Wills
SOUTH DAKOTA29A-2-501, et seq.18 years or older and of sound mindSigned in conscious presence of testator by two or more individuals who, in the conscious presence of testator, witnessed either the signing of the will or the testators acknowledgment of that signature.Not recognizedValid if signature and material portions are in testators handwriting; need not be witnessed.
TENNESSEE32-1-102, et seq.18 years or older and of sound mindTwo or more attesting witnesses must sign in presence of testator and each other after testator signifies to the attesting witnesses that the instrument is his will and he signs or acknowledges his signature, or at his direction and in his presence have someone else sign his name.Must be made only by person in imminent peril of death and valid only if testator dies as result of peril; must be declared to be his will before two disinterested witnesses, reduced to writing by or under direction of one of the witnesses within 30 days and submitted to probate within 6 months after death of testator; only valid for personal property not exceeding $1000 unless person is in active military, air, or naval service in time of war, then $10,000; neither revokes nor changes existing written will.Signature and material provisions must be in handwriting of testator and handwriting must be proved by two witnesses (no witnesses necessary to the will).
TEXASProbate Code §57, et seq.18 years or older or lawfully married or member of U.S. Armed Forces or auxiliaries or of the maritime service and of sound mindAttested by two or more credible witnesses above age of 14 subscribing names in presence of testatorMust have been made during last sickness, at residence or where he has resided for at least 10 days or more before date of will unless taken sick and dies away from home; when value is more than $30, must be proved by three credible witnesses that testator called upon someone to bear testimony that such is his will.Will wholly written in handwriting of testator needs no attesting witnesses and may be self-proved by testator attaching affidavit that it is his last will.
StateCode SectionAge of TestatorNumber of WitnessesNuncupative(Oral Wills)Holographic Wills
UTAHTit. 75-2-501, et seq.18 years or older and of sound mindSigned by at least 2 individuals, each of whom signed within a reasonable time after he witnessed either the signing, testators acknowledgment of that signature, or testators acknowledgment of the willNot recognizedValid whether or not witnessed if signature and material provisions are in handwriting of testator; last executed holographic will controls; if not dated, consistent provisions are valid; inconsistent provisions are invalid.
VERMONTTit. 14 §1, et seq.Of age (18 years) and of sound mindAttested and subscribed by 2 or more credible witnesses in presence of testator and in presence of each other.Shall not pass personal estate over $200; not proved unless memo made in writing (by person present at making) within 6 days from making of will and presented for probate within 6 months from death of testator; soldier in actual military service or seaman at sea may dispose of wages and personal estate as he would at common law. Military wills under 10 U.S.C §1044d valid.Not recognized unless statutory formalities are satisfied. Military wills under 10 U.S.C §1044d valid.
VIRGINIA64.1-46, et seq.18 years or older and of sound mind, or emancipated personsTwo or more competent witnesses present at same time who must subscribe will in presence of testator (no form of attestation necessary).Valid for soldier in actual military service or mariner or seaman at sea to dispose of personal property.If will is wholly in handwriting of testator and signed by him, neither acknowledgment nor witnesses are necessary; proof of handwriting must be by at least two disinterested witnesses.
StateCode SectionAge of TestatorNumber of WitnessesNuncupative(Oral Wills)Holographic Wills
WASHINGTON11.12.010, et seq.18 years or older and of sound mindAttested by two or more competent witnesses by subscribing their names to the will or by signing an affidavit (2) while in the presence of and at the direction of the testator.No real estate; personal property not more than $1000; members of U.S. Armed Forces and persons employed on U.S. Merchant Marine vessels may dispose of wages and personal property; must be made with two witnesses present at time of making that testator requested person to bear witness to will and that it was made at time of last sickness; must be reduced to writing, proof offered within 6 months of words spoken, and citation issued to widows and heirs-at-law that they might contest.Not valid
WEST VIRGINIA41-1-1, et seq.18 years or older and of sound mind.Two witnesses present at same time when will is signed or acknowledged by testator must sign in presence of testator and each other.Soldiers in actual military service and mariners or seamen at sea may dispose of personal estate as he would at common law.If will is wholly in handwriting of testator and signed by him, does not need acknowledgment or witnesses
WISCONSIN853.01, et seq.18 years or older and of sound mindSigned by at least 2 witnesses within reasonable time following: testators signing in conscious presence of the witness, or testators implicit or explicit acknowledgement of the will in conscious presence of the witness. Witnesses may observe signing or acknowledgement at different times.Not validWithout witnesses, not recognized under Wisconsin law unless executed in accordance with law of place where executed or law of state of domicile at time of execution.
WYOMING2-6-101, et. seq.Any person of legal age and sound mindTwo competent witnesses and signed by testator or by some person in his presence and by his express direction.Not recognizedValid if entirely written and signed in hand of testator himself; need not be witnessed.

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