By: Barry E. Haimo, Esq.
December 6, 2018
What We Can Learn From Stormy Daniels’ Oral Will
Ms. Daniel’s ordeal is certainly the stuff of a “stormy” political suspense thriller, right down to alleged death threats following her tryst with a public (and now presidential) figure that left her fearful enough to video-record her last will and testament.
While Stormy Daniels’ tale makes for an amazing storyline, the fact is that, in most cases, a video recording simply wouldn’t be recognized as a valid will.
To answer that question, we’re going to take a look at exactly what kind of will she created, how and when these types of wills might work, and why it’s still not your best option.
If anything, we can come away from this kind of drama recognizing the importance of planning ahead, and understanding that it’s never a good idea to count on verbal declaration for the final distribution of your assets.
The “Death-Bed” Will
Let’s start off with the nuts and bolts.
Stormy Daniels’ video recording would be considered a nuncupative will. This kind of will is also known as a “death-bed will,” defined as an oral will made by someone in “imminent peril of death.” Many states, including Florida, do not recognize this type of will.
In those few jurisdictions where they are valid, there are typically numerous hoops to jump through before it’s recognized.
Some examples of the requirements of various jurisdictions include:
- the testator dies as a result of the impending peril that caused the nuncupative will to be created
- a certain number of witnesses are present during the declaration
- the wishes are written by or under the direction of one of the witnesses within a certain number of days after it is created
- the recording and companion written document must be submitted for probate within a certain time period after testator’s death
Even then, only a small portion of a person’s estate is likely to ever be distributed based on a noncupative will when one does make it through probate.
What should you do instead?
Secure your piece of mind by planning ahead. Begin researching an attorney experienced in estate planning, and when you’ve decided which firm will best meet your needs, get your wishes into binding, legal documents.
Right now, in the state of Florida, that means a written legal document. However, eventually, this will change. In fact, the Florida House of Representatives and Senate recently passed the Florida Electronic Wills Act, but it was vetoed by Governor Rick Scott. So, it’s not law yet, but changes are expected at some point in the future.
How This Scenario Will Likely Shake Out
In Florida, no question, a will must be written. And it must be signed by the testator at the end of the document. There are some alternatives allowed if the testator is physically unable to sign the document, but there aren’t many other considerations.
And, frankly, if Ms. Daniels doesn’t secure a signed, written will while she has the time, it’s not likely her estate is going to be distributed exactly as she wishes, either.
In Texas, where Stormy Daniels resides, nuncupative wills have only recently been recognized, and are only used to dispose of personal property under very limited circumstances.
In order for her recording to be recognized, she would have to have been on her deathbed when she uttered the testamentary words – which she was not.
In addition, she must have spoken her wishes at home or in the location where she died and only if she was ill before she left and died of the same illness before returning home. So far as we are currently aware, she was not ill when she recorded her oral will and certainly has not died.
Beyond this, there must have been three witnesses to her speaking this testament – which there were not – so the value of bequeathed property could not exceed $30.
So, unfortunately, in this case it is not likely at all that Ms. Daniels’ noncupative will would be accepted, even in her home state.
What Happens If I Don’t Plan Ahead?
In every case, will or no will, all accounts and assets are immediately frozen after death, and the whole of your estate will go into probate.
Probate is where the courts supervise the process of identifying and gathering all of your assets, paying any outstanding debts you may have, and distributing the remaining assets to your beneficiaries.
Hopefully, well before then, you find the time to meet with your estate planning attorney and draw up your last will and testament according to your wishes — and the law.
However, if you pass away before a valid will is written and signed (remember, “death-bed” wills are never valid in Florida), your estate becomes classified as “intestate.”
According to Florida intestacy laws, “any part of the estate of a decedent not effectively disposed of by will passes to the decedent’s heirs.”
In other words, Florida will essentially distribute your property by working down your family tree based on a predetermined set of laws based on how closely family members are related to you, potentially giving your assets to people you wouldn’t want near them.
Don’t let this be the case for you. Your Florida estate planning attorney can guide you through the development process of your last will and testament based on your specific wishes and assets.
Barry E. Haimo, Esq.
Strategic Planning With Purpose®
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