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What is a Deathbed Will?

Estate Planners | Monday, May 23rd, 2011

Rather than die intestate, or without a will, some people choose to create a deathbed will when they realize that their death is imminent. The deathbed will is sometimes called a holographic will. This simply refers to the fact that it is usually handwritten. Regardless of its hasty creation, there are some jurisdictions that will recognize a deathbed will as a binding and valid last will and testament. Nonetheless, this is not true in all cases, and the deathbed will leaves the testators wishes open to challenge just by its very nature. A will that is drafted close to the time of the testator’s death is often challenged by a beneficiary that didn’t agree with the distribution of assets within the will. These challenges typically are based on the fact that the testator, in the days or even hours before death, lacked the mental capacity to make decisions in regards to his estate, or that he was subjected to undue influence or coercion by would-be beneficiaries and others. Challenges of this sort can lead to expensive will contests and broken family ties.

Oral or Nuncupative Wills

In some instances, a nuncupative will, or oral will, is called a deathbed will. This type of will is simply the oral instructions of the testator about how he wishes his estate to be distributed. Very few states accept the oral or nuncupative will as legal and valid. In those that do, there must be at least three persons present when the decedent makes the oral will, and they must write down what the decedent says within a particular number of days following the death of the testator. There is usually a limit on the dollar amounts of property and the types of property that can be bequeathed in an oral deathbed will, in states that recognize this type of will.

Deathbed Wills Prone to Error

The creation of a deathbed will gives rise to errors for various reasons. A hastily drafted will may fail to distribute the estate of the testator as the testator wished and intended. Often, the testator may leave out property or assets in this last-minute will, which leaves the will even further open to challenge, or leaves the property or assets to the court’s discretion and applicable laws for distribution. The testator may overlook or be unaware of the strategies that are available that can reduce or even eliminate estate tax for beneficiaries. The deathbed will can easily be judged invalid if it does not meet legal requirements that vary from state to state. For instance, in some states, as many as three people who are unrelated to the will maker (and who do not stand to benefit from the estate) must sign as witnesses to the will for the court to deem it to be valid and executable.

Certainly, a deathbed will is advantageous to having no will at all. For the reasons listed above, every adult should have a valid will in place that is recognized by the jurisdiction where they reside. If you don’t have a will, see a local estate planner to have one drafted. Never rely on a deathbed will to serve the purposes that you have in mind for your estate.

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