Tuesday, 11 April 2017
In my prior blog I discussed the witness requirements in Tennessee for a traditional, typed out will. In this blog and the following I will discuss the requirements for nuncupative and holographic wills.
Let’s start by discussing nuncupative wills. A nuncupative will is an oral will that is made by someone in “imminent peril of death” and “shall be valid only if the testator died as a result of the impending peril.” (See T.C.A. § 32-1-106.) Now, I know what you’re thinking: “Oral wills are valid?” Yes, but not for much. T.C.A. § 32-1-106 explains that it is only valid if 1) the testator makes the declaration before two disinterested witnesses, 2) the wishes are reduced to writing under the direction of one of the witnesses within thirty days of declaration, and 3) the will is “submitted for probate within six months after the death of the testator.” However, even if all of these requirements are met, a nuncupative will is only valid to dispense of personal property and only valid for personal property not exceeding one thousand dollars in the aggregate. The only exception to this is when the dollar amount is increased to ten thousand dollars if used by a person in active military service in a time of war.
As you can guess, it is not a good idea to count on using oral statements to distribute your assets. Usually, they are invalid and your estate would pass according to Tennessee’s laws of intestacy (the laws the apply when someone dies without a will). Nuncupative wills rarely make it through the probate process and if they do, they usually distribute only a small portion of a person’s estate. Plan ahead and have one of our attorneys discuss your estate planning wishes so that we can put them in a binding, legal document and secure your peace of mind about the future.