PRIA, Government Policy, Made Personal

Summary

Military wills created under military rules must be treated by any State like a regular will, even if they do not follow the State’s usual form rules. A military will is one that was made with the intent to leave property after death, was made under the military’s rules, was signed by someone who can get military legal help, and takes effect when that person dies. To be valid, the person must sign it (or have it signed for them if they cannot sign), it must be notarized by a military legal assistance lawyer or an approved notary supervised by one, and at least two uninterested witnesses (who are not the notary) must watch and sign. The document can include a certificate from the signer, sworn statements from the witnesses, and a notarization so the signatures are taken as likely genuine. The will should include a short statement saying it gets the special military treatment, but lacking that statement does not stop the will from being treated that way. The Defense Secretary and the Homeland Security Secretary write the detailed rules. A “military legal assistance counsel” means a judge advocate or a civilian attorney who provides military legal help. "State" includes DC, Puerto Rico, the Northern Mariana Islands, and U.S. possessions.

Title 10, §1044d

Armed Forces, Source: USLM XML via OLRC

(a)Testamentary Instruments To Be Given Legal Effect.—

A military testamentary instrument—

(1)is exempt from any requirement of form, formality, or recording before probate that is provided for testamentary instruments under the laws of a State; and

(2)has the same legal effect as a testamentary instrument prepared and executed in accordance with the laws of the State in which it is presented for probate.

(b)Military Testamentary Instruments.—

For purposes of this section, a military testamentary instrument is an instrument that is prepared with testamentary intent in accordance with regulations prescribed under this section and that—

(1)is executed in accordance with subsection (c) by (or on behalf of) a person, as a testator, who is eligible for military legal assistance;

(2)makes a disposition of property of the testator; and

(3)takes effect upon the death of the testator.

(c)Requirements for Execution of Military Testamentary Instruments.—

An instrument is valid as a military testamentary instrument only if—

(1)the instrument is executed by the testator (or, if the testator is unable to execute the instrument personally, the instrument is executed in the presence of, by the direction of, and on behalf of the testator);

(2)the execution of the instrument is notarized by—

(A)a military legal assistance counsel;

(B)a person who is authorized to act as a notary under section 1044a of this title who—

(i)is not an attorney; and

(ii)is supervised by a military legal assistance counsel; or

(C)a State-licensed notary employed by a military department or the Coast Guard who is supervised by a military legal assistance counsel;

(3)the instrument is executed in the presence of at least two disinterested witnesses (in addition to the person notarizing the instrument in accordance with paragraph (2)), each of whom attests to witnessing the testator’s execution of the instrument by signing it; and

(4)the instrument is executed in accordance with such additional requirements as may be provided in regulations prescribed under this section.

(d)Self-Proving Military Testamentary Instruments.—

(1)If the document setting forth a military testamentary instrument meets the requirements of paragraph (2), then the signature of a person on the document as the testator, an attesting witness, a notary, or the presiding attorney, together with a written representation of the person’s status as such and the person’s military grade (if any) or other title, is prima facie evidence of the following:

(A)That the signature is genuine.

(B)That the signatory had the represented status and title at the time of the execution of the will.

(C)That the signature was executed in compliance with the procedures required under the regulations prescribed under subsection (f).

(2)A document setting forth a military testamentary instrument meets the requirements of this paragraph if it includes (or has attached to it), in a form and content required under the regulations prescribed under subsection (f), each of the following:

(A)A certificate, executed by the testator, that includes the testator’s acknowledgment of the testamentary instrument.

(B)An affidavit, executed by each witness signing the testamentary instrument, that attests to the circumstances under which the testamentary instrument was executed.

(C)A notarization, including a certificate of any administration of an oath required under the regulations, that is signed by the notary or other official administering the oath.

(e)Statement To Be Included.—

(1)Under regulations prescribed under this section, each military testamentary instrument shall contain a statement that sets forth the provisions of subsection (a).

(2)Paragraph (1) shall not be construed to make inapplicable the provisions of subsection (a) to a testamentary instrument that does not include a statement described in that paragraph.

(f)Regulations.—

Regulations for the purposes of this section shall be prescribed jointly by the Secretary of Defense and by the Secretary of Homeland Security with respect to the Coast Guard when it is not operating as a service in the Department of the Navy.

(g)Definitions.—

In this section: (1)

(2)The term “military legal assistance counsel” means—

(A)a judge advocate (as defined in section 801(13) of this title); or

(B)a civilian attorney serving as a legal assistance officer under the provisions of section 1044 of this title.

(3)The term “State” includes the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, and each possession of the United States.

Notes & Related Subsidiaries

Editorial Notes

Amendments

2016—Subsec. (c)(2). Pub. L. 114–328, § 523(a)(1), added par. (2) and struck out former par. (2) which read as follows: “the instrument is executed in the presence of a military legal assistance counsel acting as presiding attorney;”. Subsec. (c)(3). Pub. L. 114–328, § 523(a)(2), substituted “person notarizing the instrument in accordance with paragraph (2)” for “presiding attorney”. 2002—Subsec. (f). Pub. L. 107–296 substituted “of Homeland Security” for “of Transportation”.

Statutory Notes and Related Subsidiaries

Effective Date

of 2002 AmendmentAmendment by Pub. L. 107–296 effective on the date of transfer of the Coast Guard to the Department of Homeland Security, see section 1704(g) of Pub. L. 107–296, set out as a note under section 101 of this title.

§1044d Military Testamentary Instruments: Requirement for Recognition by States