What Is a Nuncupative Will?

What Is a Nuncupative Will? – SmartAsset

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Making a last will and testament is an important part of your estate plan and there are different types of wills to choose from. A nuncupative will, meaning a will that’s oral rather than written, may be an option in certain circumstances. While state will laws typically require that a will be written, signed and witnessed to be considered legal, there are scenarios in which an oral will could be upheld as valid. Understanding how a nuncupative will works, as well as the pros and cons, can help with shaping your will-making plans if you have yet to create one.

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Nuncupative Will, Defined

A nuncupative will simply means a will that isn’t written. Instead, it’s delivered verbally by the person who intends to make the will.

Nuncupative wills are sometimes called deathbed wills since they’re often created in end-of-life situations where a person is too ill or injured to physically draft a will. The person making the will, known as a testator, expresses wishes about the distribution of property and other assets to witnesses.

How Does an Oral Will Work?

Ordinarily, when creating a will you’d draft a written document identifying yourself as the will maker and spelling out how you want your assets to be distributed after you pass away. You could also use a will to name legal guardians for minor children if necessary and name an executor for your estate.

An oral will sidesteps all that and simply involves the person making the will expressing his or her wishes verbally to witnesses. There would be no written document unless one of the witnesses or someone else who is present chooses to copy down what’s being said. The person making the will would have nothing to sign and neither would the witnesses.

There’s a reason oral wills are no longer used in most states: Without a written document that’s been signed by the person making the will and properly witnessed, it can be very difficult to prove the will maker’s intentions about how assets should be distributed or who should be beneficiaries.

Are Nuncupative Wills Valid?

This type of will is no longer considered valid in most states. Instead, you’ll need to draft a written will that follows your state’s will-making guidelines. For example, most states require that the person making a will be at least 18 and of sound mind. The will also has to be witnessed by the required number of people who don’t have a direct interest in the will’s contents. Depending on where you live, you may or may not need to have your will notarized.

There are a handful of states that still allow oral or verbal wills, however. But they’re only considered valid under certain circumstances.

In North Carolina, for example, oral wills are only recognized if:

  • The person making the will believes death is imminent
  • The witnesses are asked to testify to the will
  • Both witnesses are present with the testator when the will is dictated
  • The testator states that what he or she is saying is intended to be a will
  • An oral statement is made to at least two competent witnesses
  • The testator then passes away

Even if those conditions are met, the heirs to the will would still have to bring a legal action to have it admitted to probate court. The witnesses would have to testify to what was said and even then, North Carolina still doesn’t allow for the transfer of real estate through an oral will.

In New York, the guidelines are even narrower. New York State only allows nuncupative wills to be recognized as legal and valid when made by a member of the armed services during a time of war or armed conflict. The intentions of the person making the will has to be stated in front of two witnesses. State law automatically invalidates them one year after the person leaves military service if they don’t pass away at the time the will was made.

How to Prepare a Will

Having a written will in place can help your loved ones avoid problematic scenarios about how to divide your property after you pass away. If you don’t have a will in place yet, you risk dying intestate. There are a couple of ways you can create one.

The first is using an online will-making software. These programs can guide you through the will-making process and they’re designed to be easy enough for anyone to use, even if you’re not an attorney. If you have a fairly simple estate then using an online will-making software could help you create a will at a reasonable cost.

On the other hand, if you have a more complex estate then you may want to get help with making a will from an estate planning attorney. An attorney can help ensure that your will is valid and that you’re distributing assets the way you want to without running into any legal snags.

Generally, when making a will you should be prepared to:

When making a will, it’s important to remember that some assets can’t be included. For example, if you have any assets that already have a named beneficiary, such as a 401(k), individual retirement account or life insurance policy, those would go to the person you’ve named.

And it’s also important to note that a will is just one part of the estate planning puzzle. If you have a more complex estate then you may also need to consider setting up a living trust. A trust allows you to transfer assets to the control of a trustee, who manages them on behalf of the trust’s beneficiaries. Trusts can be useful for minimizing estate taxes and creating a legacy of giving or wealth if that’s part of your financial plan.

The Bottom Line

Nuncupative wills are rare and while some states do recognize them, they generally aren’t valid in most circumstances. If you don’t have a will in place, then creating one is something you may want to add to your financial to-do list. Even if you don’t have a large estate or you’re unmarried with no children, having a will can still provide some reassurance about what will happen to your assets once you pass away.

Tips for Estate Planning

  • Consider talking to a financial advisor about will making and estate planning. If you don’t have a financial advisor yet, finding one doesn’t have to be complicated. SmartAsset’s financial advisor matching tool can help. By answering a few brief questions online you can get personalized recommendations for professional advisors in your local area. If you’re ready, get started now.
  • Along with a will and trust, there are other legal documents you might incorporate into your estate plan. An advance healthcare directive, for instance, can be used to spell out your wishes in case you become incapacitated. Power of attorney documents allow you to name someone who can make medical or financial decisions on your behalf when you’re unable to.

Photo credit: ©iStock.com/FatCamera, ©iStock.com/Sean_Warren, ©iStock.com/LPETTET

Rebecca Lake Rebecca Lake is a retirement, investing and estate planning expert who has been writing about personal finance for a decade. Her expertise in the finance niche also extends to home buying, credit cards, banking and small business. She’s worked directly with several major financial and insurance brands, including Citibank, Discover and AIG and her writing has appeared online at U.S. News and World Report, CreditCards.com and Investopedia. Rebecca is a graduate of the University of South Carolina and she also attended Charleston Southern University as a graduate student. Originally from central Virginia, she now lives on the North Carolina coast along with her two children.
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Can You Be Evicted If You Pay Partial Rent

Stressed woman at desk looking down at computerTimes are tough. When you find yourself struggling to scrape together enough money to pay rent, what are your options? Will you face eviction if you can’t pay all of your rent on time? While rules vary from state to state, learn what commonly happens and what landlords can and can’t do when you can pay only partial rent.

How Laws Affect Partial Rent

Laws designed to protect renters like you differ by state and even by city. Therefore, where you live might be kinder to renters or kinder to landlords. Oregon is considered a more renter-friendly state, while Texas is regarded as a more landlord-friendly state. Let’s look at how these two states treat the issue of paying partial rent.

According to Law Server, under Oregon law, a landlord can accept a partial rent payment. If an Oregon landlord tries to evict you for nonpayment of rent, you may stand a better chance of avoiding eviction if you’ve made a partial payment. In some cases, the landlord loses the right to evict you for nonpayment of rent if they’ve accepted a partial payment.

However, as reported by Oregon Law Help, landlords in OR do not have to accept partial payments as long they issue:

  • A 72-hour notice to pay rent or move out once monthly rent is at least seven days overdue.
  • A 144-hour notice to pay monthly rent or move out after your rent is at least four days overdue.
  • A 72-hour notice to pay week-to-week rent or move out after your rent is at least four days overdue.

A landlord in Oregon is not required to accept a partial rent payment during one of these notice periods.

On the other hand, according to Texas Eviction, a landlord in the lone star state can evict a renter if they pay only partial rent. However, advocates for landlords advise them not to accept partial rent at all because it might weaken their eviction case. Instead, it’s suggested that Texas landlords accept only full rent payments from tenants. If a Texas landlord has issued a 14-day notice to either pay rent in full or face eviction, they do not have to accept a partial payment during those 14 days.

The bottom line is that if you’re a renter in Texas, it might be more challenging to make a partial rent payment and remain where you live than it is in Oregon.

(Keep in mind that many states and cities changed rules about partial payment of rent during the coronavirus pandemic so tenants could avoid eviction.)

How to Ask a Landlord About Partial Rent Payments

Ignoring the fact that you can’t make a full rent payment won’t make the problem go away. It’s best to be honest with your landlord about your situation and try to work out a solution.

“A landlord who considers you a good tenant won’t want to lose you, since it’s often difficult and expensive to evict you, then find and move in good tenants. This means you can probably get the landlord to accept a portion of the rent now — maybe even a small portion — and the rest later,” according to legal website Nolo.com.

If you find yourself unable to make a full rent payment, Nolo.com suggests that you:

  • Offer to make a partial payment in writing.
  • Explain your situation and emphasize (if you can) that the problem is only temporary.
  • Assure your landlord, in writing, that you can pay the full rent by a specific date. Be sure to honor that deadline.
  • Commit, if you can, to making full rent payments in the future.
  • Agree to pay late fees if such fees are mandated in your lease.

Find Apartment in Your Price Range

Whether you’re dealing with a limited budget, a prior eviction, or both — there’s an apartment for you! Use ApartmentSearch to filter available units by rent price, amenities, and more to help you zero-in on your next home.

Source: blog.apartmentsearch.com