Getting your last will and testament prepared so that you have confidence that your estate will be properly distributed upon your death is a great accomplishment. But there are more formal steps you need to take to formalize the will so that this legal document is enforceable.
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This article explains how to sign your will, get the necessary witnesses for your will and if you need a notary for your will. You will learn that following the legal formalities of signing a will is necessary for a probate court to validate your will during a probate process. In this case, your loved ones would need to seek legal advice on how to proceed.
What are the Basic Requirements for an Enforceable Will?
You must meet some basic requirements to make a valid will. First, the will maker, known as the testator, must have testamentary capacity. Testamentary capacity means the testator is at least 18 years old, is of sound mind, and has the mental capacity for the intent and knowledge to create a will to direct the disposition of assets, real estate, and personal property upon death. The testator must also execute their will and have it witnessed by two witnesses, as further described below. These formality requirements apply if you draft a new will or make a change, or codicil, to your original will.
What is the Purpose of Will Signing Formalities?
The formalities required when signing a will protect and preserve the intent of the testator and enforceability of the will. If a family member contests the will for undue influence or other issues, obviously the testator cannot testify as to the intent and legitimacy of the will. Your witnesses can provide evidence of this.
How Many Witnesses Are Required?
Two witnesses are always required to witness the testator sign the will. The witnesses must be aware that the testator is signing a will and that the testator appeared of sound mind. The witnesses do not need to know the contents of the will.
Who Can Witness a Will?
Witnesses must be at least 18 years old (no minor children) and be disinterested. In other words, the witness should not stand to inherit under your will or be a beneficiary of your will. For example, the witness should not be a beneficiary, a fiduciary, a personal representative, or a distant relative who could inherit your property. While not all states prohibit disinterested witnesses, it is the preferred practice.
In addition to the legal requirements to be a witness, there are also practical considerations and recommendations when considering who to choose for a witness. The witness may be required to testify in the future as to the details of the will signing. For this reason, older adults who may not survive you or strangers who are hard to find after your death are not good witness candidates. Instead, consider friends, neighbors, co-workers, bank employees, or others who meet these requirements. And keep their contact information, such as phone numbers, on hand if your personal representative needs to get in touch with them.
How Do I Find Witnesses to a Will?
You can choose any appropriate person with the required qualifications as a witness to your will. Here are some examples:
- Neighbors you know and trust
- Local friends
- Co-workers you trust and are friendly with
- Bank employees where the testator has bank accounts
- Law firm employees
What Is a Self-Proving Affidavit?
In some states, in addition to having two individuals witness a will, the witnesses can also sign an affidavit attesting to their witnessing in front of a notary public. This affidavit is the self-proving affidavit that provides further evidence of the enforceability of the will. If a self-proving affidavit is properly signed and notarized by the witnesses, this can eliminate the need for the witnesses to testify later in any probate proceeding.
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