Transferring a Last Will and Testament: The Validity of the Will



In general, if the last will and testament was valid in the first state, then it will be valid in the second state. However, it must have followed each one of the guidelines and regulations of the state of the will maker's residence when it was originally created. If this is the case, then most likely, it will be considered valid in the new state of residence.

One example of a formality that must be followed is the number of witnesses. If the original state required two witnesses and two witnesses signed the document, then this formality has been complied with. However, if only one witness signed the document when two were required to sign, then this formality was not fulfilled and the will was never valid in the initial state of residence. Therefore, it will not be considered valid in the second state of residence either.

Transferring a Last Will and Testament: Holographic Wills

Only a number of states accept holographic wills as legal and valid. Therefore, if the first state of residence accepts a holographic will as legal and valid and the second state of residence does not legally recognize such a document, then the last will and testament will not transfer and a new one will have to be created.

A holographic will is one that has been handwritten in its entirety as well as signed by the will maker also known as the testator. The holographic will must be dated, but quite often it has not been witnessed nor will it contain the signatures of any witnesses. Additionally, a document of this type does not need to be notarized. If the document is not entirely handwritten or if it is illegible, then the document will not be deemed valid.

Each state that accepts holographic wills has a set of validation requirements that must be met in order for the contents of the will to be accepted as legally valid. Among these requirements, one often finds the need to locate one individual who will testify as to the authenticity of the handwriting. Approximately half the states accept this type of last will and testament.

Transferring a Last Will and Testament: Nuncupative Wills

A nuncupative will is one that is spoken before at least two witnesses. Some states might require more than two witnesses for this to be considered valid. It is sometimes referred to as an oral will. Only a few states recognize this type of last will and testament as valid. Even if the first state of residence recognized this as legally binding, it would not be valid in the second state of residence unless that state also recognized nuncupative wills as legal.

Special Considerations

Despite the generalized comments above, there will be special cases when changes must be made in order to maintain a completely valid and legal will. Since each state has its own rules and regulations, it is possible that certain aspects of the will might not be considered valid in its new location. An example of this would be the assignment of a personal representative or the executor of the estate. Each state provides a list of requirements that must be met by the individual chosen as the executor. For example, some states require that the individual is a relative, a citizen of that particular state, or a company with the power to act as such in that particular state.