One of the primary reasons for creating an estate plan is to avoid dying intestate (meaning without a Will or trust in place to distribute estate assets). What happens though, if a loved one who is on the verge of death makes a last-minute oral Will? Is that Will valid? The Essex Junction estate planning attorneys at Unsworth LaPlante, PLLC discuss the validity of an oral Will in Vermont.
What Are the Basic Requirements for a Valid Will in Vermont?
For any Will to be valid in Vermont, the following basic requirements must be met:
- The Testator must be at least 18 years old at the time the Will is executed
- The Testator must be of sound mind
- The Will must be executed in the presence of two or more witnesses
What Is an Oral Will?
An oral Will (or “nuncupative” Will) is a Will that has been delivered orally (that is, in speech) to witnesses, as opposed to the usual form of Wills, which is written and according to a proper format. In Vermont, 14 V.S.A. § 6 governs oral Wills, stating as follows:
“A nuncupative will shall not pass personal estate when the estate thereby bequeathed exceeds the value of $200.00, nor shall such will be proved and allowed, unless a memorandum thereof is made in writing by a person present at the time of making such will, within six days from the making of it, nor unless it is presented for probate within six months from the death of the testator.”
Why Would Someone Make an Oral Will?
Ideally, every adult would have an up-to-date written Last Will and Testament when they die. Sometimes, however, the specter of an imminent death prompts a person who never took the time to create a Will to finally want to do so. The knowledge that death is near can also prompt someone to decide to change the terms of an existing Will which requires revoking a previously executed Will. Either way, a last-minute spoken Will frequently disinherits someone who was anticipating an inheritance and/or gifts significant assets to someone who was previously not a beneficiary or not a significant beneficiary. Not surprisingly, the chances of someone challenging an oral Will are much higher than the odds of challenging a written Will.
What Are the Problems with an Oral Will?
Along with increasing the odds of a Will contest being filed after your death, there are other reasons why you should avoid a last-minute “death-deb” Will. Even if the oral Will you create is determined to be valid, you can only pass $200 worth of assets using an Oral Will in Vermont. Although you may not own high-value assets, the odds are very good that you care what happens to the assets you do have. You may, for example, have family heirlooms that have been in the family for generations that you intend to pass on to someone specific. Or maybe you have a collection that you promised to a favorite niece or nephew. If you are a philanthropist, you may also hope to leave your assets to a charity that is close to your heart, or you might have strong religious beliefs and want a church or other religious organization to inherit the assets you own when you die. Regardless of how you wish to distribute your estate assets, you give up the ability to make those decisions if you leave behind an intestate estate. When a decedent dies intestate, the state intestate succession laws determine how the estate assets are distributed. Those laws typically dictate that assets be passed down to close family members only and in the proportions established by the laws only.
Contact Essex Junction Estate Planning Attorneys
For more information, please attend one of our upcoming FREE webinars. If you have questions or concerns about creating a valid Will in Vermont, contact the experienced Essex Junction estate planning attorneys at Unsworth LaPlante, PLLC by calling 802-879-7133 to schedule your appointment today.