I recently had a family come through my doors, asking me to probate their loved-one’s recorded will. He had fallen ill without making any prior estate planning and had decided to record his “last wishes” on his phone. Now the question becomes. Is a recorded will valid? In this case it was not, because it was created in 2019! Oral Wills or nuncupative wills were valid in very limited circumstances in Texas until September 1, 2007. This means any spoken will created after September 1, 2007, is not a valid will, according to Texas law.
What is an oral or nuncupative will, and when is it valid?
A nuncupative will must be created before September 1, 2007 and under the following circumstances to be valid:
- The Oral will must have been made during the Testator’s last sickness. Meaning the Testator was on his deathbed and was speaking his last wishes.
- Value of the bequeathed property; The Testator’s estate that he gave away in his will could not be more than $30 in personal property. This means that real property, or real estate could not have been given away via an Oral will
- Location; The Testator must have been at one of three locations; 1) at his/her home, or 2) at the place he/she resided for ten (10) or more days before speaking those words, or 3) at any location if he was died on his way home.
Today, Texas requires that all wills are in writing, and because creating a will is law based, and laws have a habit of changing, you can see why it is therefore important to work with a licensed Texas Attorney, as well as making sure you talk to one ever 3-5 years to ensure your estate plan (Trust, Will, Power of Attorney, Medical Power of Attorney, etc.) still meets all the requirements necessary to reach your ultimate goals, because laws change constantly, and not every estate plan fits everyone’s needs.