Preparing your last will and testament so your estate goes to your loved ones is a great accomplishment. But there are more formal steps you need to take to formalize the will so that it is legal and enforceable. This article explains how a will needs to be signed, how many witnesses you need, and if you need a notary for your will.
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If you don’t follow the legal formalities of signing a will, a probate court may invalidate your will during the probate process.
What Are the Basic Requirements for an Enforceable Will?
To make a valid will, the will-maker, known as the testator, must be at least 18 years old, have a sound mind and testamentary capacity to create a will. Testamentary capacity means the testator has the knowledge and intent to create a will and understands what they own and who are their natural beneficiaries. The will must also be properly executed by the testator and witnessed by two witnesses.
Why Are There Will Signing Formalities?
States require certain formalities to protect and preserve the testator’s intent and enforceability of the will. If a family member contests the will for undue influence or other issues, the testator cannot testify. Therefore the witnesses may testify that the testator knew it was their will and that they intended to sign their will as their last statement of their wishes. The witnesses may also describe the circumstance of the signing to disprove claims of undue influence.
How Many Witnesses Do I Need?
In most states, you need two witnesses to witness the testator’s signature on 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 details or the will’s contents.
Who Can Witness a Will?
Witnesses must be at least 18 years old (not minor children) and be disinterested. An interested witness stands to inherit under your will or be a beneficiary of your will. While not all states require disinterested witnesses, having independent witnesses is a good practice.
In addition to the legal requirements to be a witness, there are other considerations of who to choose as a witness. Since a witness may be required to testify in the future, you may not want older adults who may not survive you or strangers that may be hard to find when a court wants them to testify. Consider friends, neighbors, co-workers, bank employees, or other individuals.
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 before a notary. This affidavit further proves that the testator properly and voluntarily signed their will. If the witnesses sign a self-proving affidavit in front of a notary, this may eliminate the need for the witnesses to testify later in any probate proceeding.
How Is the Will Signing Conducted?
Once you drafted your will and selected two qualified witnesses, you are ready to sign. Here is how a typical will signing procedure occurs:
- You have the will in front of you.
- The disinterested witnesses are positioned in the same room so they can see you sign your will and know that you are signing a will.
- The witnesses watch you initial the bottom right corner of each page of your will.
- The witnesses watch you sign the last page.
- After witnessing, each witness signs the will attesting that they saw the testator sign and the testator appeared of sound mind.
- If applicable, the witnesses sign the self-proving affidavit in front of a notary.
- The notary signs the self-proving affidavit.
- The signing is complete, and store the original will in a secure place.
Follow this signing protocol when you make any amendment or change to any will changes (called a codicil) or if you create a new will.
Get your estate planning done using our Estate Planning resources that comply with your state’s laws. You can create a Last Will and Testament, Financial Power of Attorney and Health Care Directive and Living Will. The instructions and guides are clear and easy to follow to meet your individual needs.