Not all forms of last will and testaments will be valid in every single state in the United States. In other words, in some states wills such as handwritten wills, referred to in legalese as "holographic wills" or "olographic wills," are perfectly fine, while in other states handwritten wills are not considered wills at all. Surprised? Confused? Don't be. Read on to learn about the different types of last and will testaments that are recognized in the United States.
NOTE: State laws change frequently and the following information may not reflect recent changes in the laws. For current tax or legal advice, please consult with an accountant or an attorney since the information contained in this article is not tax or legal advice and is not a substitute for tax or legal advice.
- Holographic Will or Olographic Will - A holographic will, referred to as an olographic will in Louisiana, is a last will and testament that is written in the testator's own handwriting or, in some states, typed on a typewriter or printed out from a computer, and then signed at the end by the testator. In some states holographic wills that are not dated will be invalid, while other states do not recognize holographic wills that are written in their state but will recognize holographic wills validly created in a state that accepts them. Currently the following states do not recognize holographic wills: Alabama, Delaware, Florida, Georgia, Illinois, Indiana, Kansas, Minnesota, Missouri, New Hampshire, New Mexico, Ohio, Oregon and Rhode Island.
- Nuncupative Will - A nuncupative will, also called an oral will, is a last will and testament that is spoken out loud. Usually this type of will is made due to the testator's impending death due to injury or illness (in other words, a "dying declaration"). In some states a nuncupative will is only valid if it is spoken in front of two or more witnesses, and in other states once spoken, the person's final wishes must be reduced to writing. In addition, some states limit the use of nuncupative wills to military personnel or for only disposing of personal effects (such as jewelry or art work) or a limited value of property. As with holographic wills, not all states recognize nuncupative wills.
- Pour Over Will - A pour over will is a last will and testament that is used in conjunction with a revocable living trust. As such, this type of will is usually very brief in that it will only be used to revoke all prior wills, direct that probate assets be "poured over" into the revocable living trust, name an executor, and name a guardian for minor children.
- Self Proved Will - A self proved will is a type of will that is validated by attaching an affidavit which is signed by the witnesses to the will in front of an officer authorized to administer oaths, such as a Notary Public. The purpose of this "self-proving affidavit" is to confirm that the witnesses actually saw the testator sign the will and alleviates the need to obtain affidavits from the witnesses after the testator dies. Below is the form of self-proving affidavit provided for in Florida under F.S. §732.503:
"STATE OF FLORIDA
COUNTY OF _______________
I,[insert name of testator], declare to the officer taking my acknowledgment of this instrument, and to the subscribing witnesses, that I signed this instrument as my will.
We, [insert name of witness #1] and [insert name of witness #2], have been sworn by the officer signing below, and declare to that officer on our oaths that the testator declared the instrument to be the testator’s will and signed it in our presence and that we each signed the instrument as a witness in the presence of the testator and of each other.
Witness #1's signature
Witness #2's signature
Acknowledged and subscribed before me by the testator, [insert testator's name], who is personally known to me or who has produced a driver's license as identification, and sworn to and subscribed before me by the witnesses, [insert name of witness #1], who is personally known to me or who has produced a driver's license as identification, and [insert witness #2], who is personally known to me or who has produced a driver's license as identification, and subscribed by me in the presence of the testator and the subscribing witnesses, all on [insert date].
Signature of Officer
Print, type, or stamp commissioned name and affix official seal"
- Living Will - A living will is NOT a type of last will and testament, although is an important part of any good estate plan. A living will is a legal document that allows you to describe your final wishes if you are diagnosed with a terminal illness or slip into a coma and are not expected to recover. As such, a living will is not a type of last will and testament because it has nothing to do with the disposition of your property after you die.