When you are planning for end of life situations you will want to have a valid will created by you and your estate planning lawyer. The laws regarding the construction of wills is considered to be a matter of state law. Every state is different in what it requires for a will to be a valid document. Every state also has different law concerning the disposition of personal property through a will and whether certain bequests will be honored by the probate court.
Some of the most important aspects of a will, that vary from state to state, are the requirements for a valid will, whether the state recognizes holographic wills, whether the state recognizes incorporation by reference, and whether the state recognizes the rule against perpetuities.
Here is a summary of these important aspects of wills as per their state laws.
1. Will Requirements
The standard requirements for a will to be valid are that the will be drafted by an individual of the legal age, and attested by a number of witnesses. Following is a list of each states requirements for a duly executed:
Where State requires that individual be 18 years of age: Alabama, Arkansas, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Mississippi, Montana, Michigan, Missouri, Nebraska, Nevada, New Jersey, New York, New Mexico, Minnesota, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, Washington, West Virginia, Wisconsin, and Wyoming
States that permit emancipated minors: Florida, Idaho, Massachusetts, and Virginia
States that permit married minors: New Hampshire, Oregon, and Texas
States that permit military personnel under 18: Indiana and Texas
If 18 year old is parent prescribing a guardian: Kentucky
States that permit a lower age requirement: Georgia (14 yrs old) and Louisiana (16 yrs old)
States that require two witnesses who sign both in the testator’s presence and the presence of each other: Alabama, Arkansas, Alaska, Arizona, Arkansas, California, Colorado, Delaware, Florida, Georgia, Indiana, Iowa, Kentucky, New Mexico, Minnesota, North Carolina, North Dakota, Ohio, Rhode Island,Tennessee, West Virginia, and Wisconsin
States that require two witnesses who need only sign or acknowledge will in presence of testator: Connecticut, Idaho, Kansas, Louisiana, Maine, Maryland, Mississippi, Massachusetts, Missouri, Nebraska, Nevada, Minnesota, New Hampshire, North Carolina, Oklahoma, Oregon, South Dakota, Texas, Utah, and Washington
States that require two witnesses sign within either the presence of the testator or the other witness: Montana, Michigan, New Jersey, North Dakota and South Carolina
States that require three witnesses: Virginia
2. Holographic wills
Holographic wills are defined as wills that are handwritten by the testator with no witnesses. Holographic wills are difficult to probate due to the inability of the will to be validated by witnesses. There is a tendency for holographic wills to be considered invalid. There are exceptions to the rule that holographic wills are invalid. Those states that permit the probating of valid wills usually require that the entire will be in the testators handwriting and that it be signed by the testator. Those portions of a holographic will that are not in the testators handwriting or appear after the signature are deemed invalid, even in states that permit holographic wills.
States that DO NOT permit holographic wills: Washington, Oregon, New Mexico, Kansas, Minnesota, Iowas, Missouri, Wisconsin, Illinois, Indiana, Ohio, Alabama, Georgia, South Carolina, New Hampshire, Massachusetts, Rhode Island, Connecticut, The District of Columbia, and Maryland
States that do not permit holographic wills EXCEPT for military personnel: New York, Florida, and Delaware.
In all other states holographic wills are permitted but in some of those states other requirements must be met. In Arkansas a holographic will must be identified by 3 disinterested witnesses who can attest to the testators handwriting and signature. In Connecticut holographic wills are generally invalid, unless they are created and valid in a different state. In Idaho, Maine and Montana no witness is needed.
3. The Rule Against Perpetuities
An important law that a testator, and his estate planning lawyer, should always keep in mind when drafting a will is whether that state recognizes the rule against perpetuities. The rule against perpetuities states that “No interest is good unless it must vest, if at all, not later than twenty-one years after the death of some life in being at the creation of the interest.” The rule against perpetuities is very complex as noted in a California Supreme Court case where it was held that failing to correctly calculate the rule against perpetuities is not legal malpractice. Essentially the rule against perpetuities means that upon the death of the testator, the class of people designated by the testator must be closed and all members identified within 21 years. This rule, when applied, takes into account all possibilities, including the much maligned fertile octogenarian rule. Essentially this means that even if the testator leaves all his assets to the children of his sister who reach 21 the devise may be invalid due to want to meet the rule against perpetuities. If all his sisters children are alive at the testators death it is still possible that the sister, no matter how old she is, to have more children. In this hypothetical there is a possibility that one of the sister’s children will not be 21 within the perpetuities period. If this happens then the devise is void and will fall into the residuary.
Due to its complexity and modern day irrelevance the rule against perpetuities has been eradicated in many states. Those states have abolished the common law rule against perpetuities have adopted some other form of the rule. Most states have adopted the Uniform Statutory Rule Against Perpetuities. This modern approach is essentially the same as the common law rule of perpetuities except that the time period is 90 years instead of 21. This means that a bequest is more likely to be valid due to its ability to vest within a 90 year period.
Many states also apply what is called the “wait and see” doctrine. In this approach the complexity of the hypothetical analysis required by the rule against perpetuities is eliminated and the courts will wait the 21 year period to see if the bequest actually vests within the perpetuities period. For example, if the testator leaves “$5 million to the children of my sisters who reach the age of 25” and the sisters are alive they are still technically able to have more children. Under the common law rule against perpetuities the bequest would be invalid for want of the rule against perpetuities. Under the “wait and see” doctrine the court will wait until the death of the testator, when the will becomes executable, to determine whether the rule against perpetuities has been violated. If at the testators death both sisters are alive then the rule has been violated. If, on the other hand, the sisters are both deceased then the class has been closed prior to the execution of the will and the rule has not been broken.
In yet other states a rule called “cy pres” is invoked. Cy pres is a policy, followed by some states, that will negate the adverse affects of the rule against perpetuities if the court is convinced that it was the intention of the testator for a that class to receive the bequest despite the rule against perpetuities. For example, if the testator’s will states “to the children of my brother so that survive him so that all my nephews and nieces will be taken care of.” In this case, the measuring life is the brother of the testator. If at the testator’s death the brother is deceased but his wife is pregnant then the class will violate the rule against perpetuitities, however, in cy pres jurisdictions the courts will follow the wishes of the testator and validate the bequest due to it being the obvious intention that all his brother’s children, whether living at the testator’s death or not, be granted the bequest.
Here are a list of the States in the Union that follow the different forms of the rule against perpetuities:
States that follow the common law rule against perpetuities (must vest within 21 years of a life in being): Idaho, Illinois, Iowa, Kentucky, Louisiana, Maine, Maryland, Mississippi, Michigan, New York, New Hampshire, Ohio, Oklahoma, Pennsylvania, Rhode Island, Texas, West Virginia and Wisconsin.
States that follow the Uniform Statutory Rule Against Perpetuities (must vest within 90 years of a life in being): Alabama, Alaska, Arkansas, Arizona, California, Colorado, Connecticut, Deleware, Florida, Georgia, Hawaii, Indiana, Kansas Montana, Massachusetts, Missouri, Nebraska, Nevada, New Jersey, New Mexico, Minnesota, North Carolina, North Dakota, Oregon, South Carolina, South Dakota, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming.
Of the States that adopt the common law rule against perpetuities most also adopt either the cypres doctrine or the “wait and see” doctrine. For more information on whether your state follows these specific rules you should consult your state statute on wills, trusts, and intestacy. You can also get important information from your states bar association or from your estate planning lawyer.
4. Incorporation by Reference
Incorporation by reference is a doctrine in which a will be permitted to incorporate another document that the testator had created to help dispense his, or her, property. A good example of incorporation by reference would be if a will stated “I leave the residuary of my estate to all the individuals named in a document labeled beneficiaries that can be found in my safe deposit box at Chase bank.” The document that is found in the safe deposit box has been incorporated into the will and will be probated in conjunction with the decedents will. There are three requirements for a document to be validly incorporated. They are: (1) that the document exists at the time that the will is executed; (2) the document to be incorporated, and its contents, are described in such particularity in the will to ensure that it is exactly what the testator meant. In the previous example this would be the document labeled beneficiaries in the Chase bank safety deposit box; and (3) the will must duly manifest intent of that the document be incorporated. It is not necessary to use the specific language of “incorporate” but it is recommended. Every state in the union allows for some form of incorporation by reference except for three.
In New York, Louisiana and Connecticut incorporation by reference is not recognized and and reference to a document will be disregarded in probating the will. In these cases all probate assets that were intended to be dispensed through the incorporated document will pass into the intestacy, following the rules of the state in descent and distribution.