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What is an Oral Will?

Estate Planners | Monday, June 13th, 2011

An oral will, also sometimes referred to as a nuncupative will, as the name suggests, is merely a verbal accounting of a testator of how he or she wishes for property and assets to be distributed upon death. The oral will is similar to a traditional (written) will, but is spoken. It is rare for an oral will to be used in modern times, although it is certainly a viable option in some circumstances, such as in an emergency situation where there is no time for a written will to be prepared before death occurs. There are complex issues that can arise with oral wills, and limits as to who can witness the will, as well as limits on what type of property can be bequeathed using an oral will. Not all states recognize an oral will as valid, and in those that do, there are strict guidelines that govern its validity.

Problems with Oral Wills

The very nature of the oral will leaves the wishes of the testator up to interpretation by the courts, which is many times the case as the oral will is often challenged. The oral will allows for a strong possibility of misunderstanding, mistakes, and downright fraud. Typically, the recognition of an oral will arises in instances of war, when a member of the armed forces is going into battle and has no time to prepare his or her will. In legal circles, it is often said that the oral will is not worthy of the “paper it is written on” – which is basically a clever way of saying that an oral will is basically worthless in most instances. Simply telling someone that you want them to have something when you have passed away does not constitute an oral will. An oral will, to be valid at all (in jurisdictions where they are accepted) involves the witnesses to the oral will writing down the words of the testator within a particular period of time, usually several days, after the will was spoken. The words must be spoken in a particular manner and must deal directly with the dispensation of your property and assets following your death, and your wishes for that dispensation.

Benefit of Legal, Written Will

The best advice that can be given is that nobody should rely simply on an oral will as a means to distribute their estate when they die. Even those folks whose estates are not large should have a will of some type prepared well in advance of a decline in health. In other words, even healthy people are subject to life-threatening accidents, injuries, and illnesses, and having a legal, written will prepared by a professional is a very inexpensive investment in your family’s future. Even single persons should have a will so that those they leave behind will know what they wished to happen with their estate. Relying on an oral or nuncupative will is foolhardy at best. See an estate planner to have your will prepared and your heirs will avoid the need for an oral will in the first place.

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