Yes, every state requires you to have witnesses to sign a will legally. This article explains why you need witnesses, who may serve as witnesses to your will, and the witness requirements. It also discusses the holographic will, which is an exception to the witness rule.
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Even after you’ve carefully drafted a will that reflects how you want your estate handled after your death, including the executor you want to manage your estate and the assets you want to pass on to your family members and loved ones, you still need to complete specific execution requirements to make your will a valid legal document. While the exact execution requirements of each state varies, you generally always need to sign your will in front of two witnesses.
Okay, so you know you need witnesses to make your will valid. But why do you need witnesses? Who can serve as a witness? And what must these witnesses do?
Why Do You Need Witnesses To Make a Valid Will?
While it may seem like an unnecessary formality, the added safeguard of requiring witnesses to make a valid will expedites the probate process and helps settle any disputes about your will after you pass away.
Probate is the legal process your will goes through after you die to prove its validity and distribute your assets. The will-maker or “testator” must sign the will to make the will valid. Since you won’t be around to tell the probate court that it is your signature on the document, your witnesses can testify that they watched you sign it.
The testator must have “testamentary capacity” when they created their will. Testamentary capacity refers to a person’s legal and mental ability to make a will. The testator must be at least 18 years old to have legal capacity. To have mental capacity, the testator must generally have a “sound mind.” This typically means that you are aware that you are making a will and understand the effect of distributing the assets outlined in the document.
Sometimes, the decedent’s heirs will challenge the testator’s mental capacity to make a will by claiming that the testator was under duress or undue influence. Witnesses help settle potential disputes over testamentary capacity because they can testify that the testator knew what they were doing when they signed the will.
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Who Can Witness a Will?
State laws vary slightly on who can serve as a witness to your will, but here are the basic requirements to keep in mind:
- Legal Adult: Witnesses must be legal adults to witness a will. In most states, 18 is the “age of majority,” or the age that a state considers a person a legal adult. Some states set the age of majority to 18 or 21. While minors absolutely cannot be witnesses to your will, it’s a good idea to choose witnesses who aren’t likely to die before you because they cannot testify in probate court after your death.
- Disinterested: Most states require “disinterested” witnesses. Disinterested witnesses are those that do not have a personal stake in the testator’s estate (i.e., they are not beneficiaries and do not stand to inherit under the terms of the will). Your spouse, children, grandchildren, etc., typically cannot serve as witnesses because they likely have an interest in your estate. If a beneficiary serves as a witness in a state that requires disinterested witnesses, the court may declare the gift to that person void.
- Two Witnesses: All states require at least two witnesses to make a valid will, but you can have more if you want.
Remember that these are just the general requirements of most states, but you should always check your state’s requirements to ensure that you take all the necessary steps to formalize a legally binding will.
What Do Witnesses Do?
Witnesses do not have to read the contents of your will, but they must take a few steps to ensure your will is executed correctly. Again, the exact will-signing procedure you must follow varies according to your state’s laws, but you should know the general formalities.
Most states require the testator to sign the will “in the presence” of the witnesses. In some states, this literally means that the testator is in front of the witnesses when signing the document. Other states require something less literal, such as the testator affirming their signature is on the will in the witnesses’ presence.
After the testator signs the will, the witness must also sign the document. In most cases, the witnesses must sign the will in the testator’s presence. Some states also require that the witnesses sign the will in front of each other.
Although it isn’t required, most states allow you and your witnesses to execute a “self-proving affidavit” as an additional safeguard to help prove your will’s validity when it goes through probate. A self-proving affidavit is a notarized, sworn statement that the testator properly executed their will. It’s a helpful tool because it often avoids needing your witnesses to testify about the will’s validity in probate court after your death. To execute a self-proving affidavit, you and your witnesses each sign the sworn statement (affidavit) in front of a notary public. Usually, the affidavit is then attached to your will.
What About Holographic Wills?
About half of the states will accept into probate a handwritten will that is unwitnessed and signed by the testator. A handwritten will is known as a holographic will, and it’s an exception to the witness requirement for making a formal will. While some jurisdictions recognize holographic wills, they are not encouraged as they are often contested and can lead to authentication problems in the probate court. They generally should only be used as a last resort in emergency situations.
Ready to Draft Your Will?
In most cases, you can draft your own will online using do-it-yourself estate planning tools. Once you’ve prepared a will that outlines your wishes, you must have it witnessed according to your state’s law. We can help with this, too. After you complete and purchase your last will form, we generate a final document that includes a cover sheet with instructions on finalizing your will according to your state’s legal requirements.
If you still have questions or are unsure about your state’s witness requirements, seek legal advice from an estate planning attorney in your area.