Deathbed Will

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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A deathbed will is one created and executed when the testator (the person writing the will) is facing imminent death. Despite being hastily drawn, this type of will may be as valid and binding as a one prepared in advance, but relying on a deathbed will to distribute assets can be risky. Another version of a deathbed will might be called a holographic will

A will prepared close to death is apt to be challenged by a disappointed beneficiary. Such challenges usually contend that the testator lacked sufficient mental capacity or was subjected to undue influence. This type of challenge can lead to a costly and protracted will contest.

In addition, wills prepared hurriedly are often prone to errors for several reasons:

  • The quickly drawn will may fail to distribute the property as the testator intended;
  • Hasty preparation may overlook, and miss strategies to minimize or eliminate the federal estate tax; and
  • The will may be judged invalid because it does not meet a certain legal requirement, such as the signatures of two (or, in some states, three) witnesses who are not related to the testator and do not benefit under the will.

Deathbed wills can also be spoken instead of written, wherein orally-communicated instructions are given regarding the testator’s wishes, in the presence of witnesses. Keep in mind, however, that not all states accept these types of wills as valid, instead requiring a written will with witness signatures. Some states may also have restrictions as to what can be orally communicated in a will, such as dollar amounts of transferring properties or assets; this is because numbers can be misheard and there is the risk of mistakes in what numbers are spoken of, whereas a written number is harder to dispute.  

While a deathbed will is better than no will at all, to avoid errors or potential challenges, create and execute a will while still of sound mind and body. Your family will appreciate your advance planning.

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