When you sign your last will and testament, two witnesses must sign your will after witnessing your signature. This may seem like an excessive formality for this legal document. Still, this legal requirement protects the willmaker or “testator” by having two witnesses who can attest to the legitimacy of the willmaker’s signature.
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This article reviews a will’s basic signature and witness requirements, so you know what to consider when making your witness selections.
Basic Signature Requirements for a Valid Will
Although the laws vary among the states, there are generally three minimum signing requirements for a valid will:
- The will must be in writing
- The willmaker must sign the will
- Two witnesses must witness the will
The primary reason that two witnesses must witness a will is to prevent fraud. As mentioned above, after a willmaker dies, the witnesses who saw the signature may need to verify the same if there is a will contest.
This article will address the witness requirement for a valid will and does not address the requirements for writing a will or the mental capacity or testamentary capacity of the willmaker. If you are creating your own last will and testament using Trust & Will’s forms, you can rest assured that these forms are state-specific and compliant with each state’s laws so you can confidently select your witnesses.
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Who Can Witness a Will?
Although the laws vary among state probate codes, the basic requirements for a person to qualify as a witness to a will is:
- The witness must be age 18
- The witness must have a sound mind
- The witness must know that the document you sign is your original will
- The witness should not benefit from your will
Check your state-specific requirements for witnesses to a will or amendment to a will, called a codicil.
What Does a Witness Do?
A Witness Must Know That the Will Maker Is Signing a Will
The witnesses’ responsibilities are simple but critically important to validate a will. In most states, the witness must understand that the willmaker is signing a will. The witness does not need to read the will or know what it contains. It is sufficient that the witness knows that the willmaker is signing their will. While uncommon, there are cases where a judge invalidated a will because the witnesses did not know what legal document the will maker was signing when they witnessed it.
A Witness Must Sign the Will After Witnessing the Will Maker Sign the Will
The witness must sign the will after witnessing the willmaker sign the will. Depending on the jurisdiction, it is not sufficient for a willmaker to tell the witness they signed the will or acknowledge their signature. The witness must watch the willmaker sign the will and must not sign until after such witnessing. Check your state’s rules.
The Witness Should Not Be a Beneficiary of Your Will
In most states, the witness must be “disinterested.” In other words, the witness cannot be a person who stands to inherit under the will, nor should the witness be a beneficiary under the will. The consequences vary in each state, but if a beneficiary witnesses a will, the will could be declared invalid by a probate court, or the court could void the gift to the witness beneficiary.
Note that not all states prohibit a potential beneficiary from being a witness. However, this practice is strongly discouraged, regardless of state law. In a will contest where someone questions the willmaker’s signature authenticity, a disinterested witness is far more credible than a witness who stands to inherit under the will.
What About a Notary as a Witness?
A will does not need to be notarized. While a notary can serve as witness, they cannot act as both notary and a witness. It is common for a notary to notarize a self-proving affidavit signed by the witnesses to establish the will’s validity in case of a will contest. This self-proving affidavit is not required and is in addition to the required witness signatures.
Other Considerations for Witnesses
It is best to choose witnesses younger than you who live locally and are willing to take on this task. Elderly witnesses or witnesses who live in another state are less ideal because they may not be available if they are needed to verify your signature in probate court. Technically, you could have neighbors, family members, loved ones, friends, acquaintances, co-workers, bank employees, or others who meet the minimum witness requirements, just as long as they are disinterested witnesses. Realistically, it is most practical to have local witnesses you know.
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Trust & Will’s estate planning tools are state-specific and comply with each state’s laws for formation, signing, and witnessing a will. You can trust that their do-it-yourself solutions are compliant and complete.