Nuncupative wills: What are they & when are they valid?

Oral wills are only valid in narrow circumstances, so you shouldn’t count on them as part of your estate plan.

Elissa

By

Elissa Suh

Elissa Suh

Personal Finance Editor

Elissa Suh is a senior editor of estate planning at Policygenius in New York City. She has researched and written extensively about wills, trusts, and personal finance since 2019, with an eye towards making difficult (and at times gloomy) topics easy to understand for readers. Her articles and data stories has been cited by the likes of MarketWatch, CNBC, PBS, Inverse, The Philadelphia Inquirer, and more.

Published September 22, 2020|4 min read

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A nuncupative will, or oral will, is a will that is stated verbally instead of written down. A last will and testament lets you plan for what happens to your property and possessions once you pass away. In the U.S., a number of states allow for nuncupative wills, but typically only in certain conditions, like if you’re in the armed forces. You may also be able to speak your will if you are under imminent peril of death or your last illness (the illness that causes your death), which is why nuncupative wills are sometimes called deathbed wills.

Nuncupative wills, like written wills, must be constructed in a certain way according to the state’s requirements. Failing to do so could mean that you die with an invalid will, or intestate, which is the same as not having a will in the first place.

Key Takeaways

  • A nuncupative will is an oral will

  • Nuncupative wills are not legal in every state and must be proven in probate, just like a regular wills

What is a nuncupative will?

A nuncupative will is an oral will, spoken by the person creating the will. The oral statement relays a person's wishes for what should happen to their assets and everything they own once they die.

If someone has already written a will, a nuncupative will cannot typically override it. If you have a valid will and want to update it, you can do so with a codicil. You can also just write an entirely new will, which probably isn't as time consuming as you'd think, since it's most likely typed up already. (You would, however, still need to make sure it is witnessed and notarized. Make sure to destroy the old will to limit confusion.)

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Requirements of a nuncupative will

One of the basic requirements of a will is the testamentary capacity of the will writer (testator), which means the person creating the will must make it known that they are of sound mind and intend to create (or in this case verbalize) a will. Written wills must typically be witnessed by two people, depending on your state’s laws, and nuncupative wills are no different; two witnesses are required to hear the spoken will if your state normally requires witnesses. In some states, like Indiana, for example, the witnesses may even have to type up the oral will within 30 days for it to be valid.

State laws may also restrict what assets someone can bequeath through an oral will. For example, you may be limited to only bequeathing personal property (no real property, like a house) and only up to a certain dollar amount.

Related article: What are the requirements for a will to be valid?

When is a nuncupative valid?

Oral wills don’t pass muster everywhere. States like Florida explicitly deny the validity of nuncupative wills, even if they were made in another state that allows for them. If you live in a state that does allow for nuncupative wills, it may only be valid under narrow circumstances, such as when you are a member of the armed forces, a mariner, or under imminent peril of death. Typically you must die from this impending peril for the terms of an oral will to take effect; if you survive, your nuncupative will likely expires after a certain amount of time has passed, so make sure you write a will once you are able to.

How is a nuncupative will proven?

Proving nuncupative wills can be difficult so you should only make one as a last resort. In some states, evidence of a nuncupative will must be filed with a probate court within a certain time period, like six months, after the passing of the deceased. During probate, the court must determine whether or not the will was valid and a nuncupative will, just like a written will, may be contested. If the will is proven invalid, then it will be as if you died without one in the first place, and the court will need to determine who gets your belongings.

Read about what happens if you die without a will.

If possible, the best option is likely to write a will instead of trying to use an oral will. A basic will should not take much time to write and only consists of choosing beneficiaries and what assets they should receive. You can even write your will by hand, which is also known as a holographic will. However, just like nuncupative wills, holographic wills are not valid in every circumstance.

Writing a solid will as part of your estate plan will help ensure the proper beneficiaries receive your things and prevent any future disputes between your family members. If you want to use a template or service that lets you create a will online, Policygenius offers uses attorney-approved tools to craft your will, and you can get both a digital and paper copy.

Learn more about how to create a will online.