In a will, as with many legal documents, the requisite signatures make all the difference in the world. Your signature is the symbolic mark declaring to the world when you die that the instructions contained in the final document are truly your “last will and testament.” It is an essential part of a valid will and should not be taken lightly.
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Signatures and Witnesses
As with many legal documents, the devil is in the details. Because you will not be available to protect your own estate after your death, there are a number of legal requirements meant to guard against misuse of your signature once you do die. This article explores a few of these requirements common across states and some potential strategies to avoid complications.
Of course, the most important signature required to make a will valid is that of the person making the will. This person is known as the “testator”; when they die, they are known as the “decedent.” All other signatures are meant to ensure the integrity of the testator’s.
So, who else’s signatures are required? Wills must be signed in the presence of witnesses. Legally, ensuring that the testator has the mental capacity to make decisions for themself is very important. In particular, the law wants to make sure that testators lacking mental capacity are not taken advantage of. Witnesses help by making sure testators are of “sound mind” when signing.
Number and Age of Witnesses
All states require at least two witnesses. That said, laws change. For example, before requiring merely “two or more credible witnesses,” Vermont used to be the only state that required three witnesses. Before you sign your will, check your state’s current requirements just in case.
Witnesses must typically watch the testator sign while in each others’ presence. Among other things, this helps make sure no witnesses manipulate or exert any pressure on the testator. Each witness then provides their own signature in the testator’s presence. There are some exceptions to this rule, but it is much better to have everyone sign in the same sitting. This helps avoid complications down the road.
Further, most states require witnesses to be at least 18 years old. However, there are exceptions here too. For example, Texas only requires “credible witnesses who are at least 14 years of age.” Again, check your state’s current age requirements to be certain.
Who Makes a Good Witness?
Though states vary as to other witness requirements, common denominators are credibility, neutrality, and disinterest. An “interested witness” is one whose stake in the estate creates an incentive to lie. This defeats the point of having them as a witness.
For example, heirs (individuals who inherit based on their descent from the testator) and beneficiaries (individuals otherwise selected to receive a portion of the estate) are typically not allowed to act as witnesses because they have an interest in the division of the testator’s estate. In general, loved ones are not the best witnesses regardless of whether they are heirs or beneficiaries. Similarly, a lawyer who drafts a will may also not act as a witness.
Holographic Wills
“Holographic wills” are discouraged. These are handwritten wills and are binding in about half of the states if there is proof that the testator handwrote the whole document, signed it, dated it, and was competent to do so. No witnesses are required. Holographic wills tend to raise suspicion and are susceptible to legal challenges because of their highly informal nature. Accordingly, these wills should almost always be avoided.
Have Your Witnesses Sign a Self-Proving Affidavit
Probate is a legal process in which your executor proves to a court that your will is valid. Simply put, they must prove that the document is truly a reflection of your intentions for your estate after you die. (Separately and confusingly, “probate” can also refer to the process of distributing your estate in the absence of a will.)
Normally, proving the validity of your will to a probate court might require having your witnesses testify in court. A “self-proving affidavit” is meant to simplify the probate process by avoiding this requirement. It is a sworn document, stamped by a notary, that is attached to a will and declares it to be authentic. Though this creates an added expense in having to go before a notary, this step helps avoid much larger expenses during probate.
Notify Your Executor
An “executor” is the person you select in your will to carry out its instructions when you die (in some states, they are called “personal representatives.” They should be chosen carefully for competence and trustworthiness.
Keep the original will in a safe location and make sure your executor knows where it is. Upon request, many law firms will hold on to the original copy of their clients’ wills for safekeeping. Alternatively, you may leave your original will in a safe deposit box at a bank. No matter which option you choose, be sure your executor knows where to look for it.
One common source of conflict involving wills is the existence of multiple wills. Be sure to date and sign any new wills clearly. Newer wills should also clearly state that they are meant to supersede any earlier wills. This can be done using what’s called a codicil, a supplemental document attached to your will that can be used to revoke earlier wills or modify current ones. If possible, you should go ahead and destroy any old wills (originals and copies).
Also, if you have created multiple wills over time, it is even more important to preserve the original copy of the most recent version. Multiple copies of a current will, in the absence of an original version, invites speculation that you destroyed the original with the intention of revoking it. Arming your executor with the original copy of your most current will is the best way to avoid these complications.
Residence Requirements
As long as your will is valid in the state in which it was created, it will generally be valid in the state in which you die. However, when you move to a different state, it is still good to review that new state’s laws. Though your will may still be valid, you can avoid complications and expedite its administration by reforming it to comply with the laws of your new state.
For example, suppose you created a valid will in Texas, which allows your witnesses to be as young as 14 years old. Suppose you then move to another state which, like most, requires that witnesses be at least 18 years old. In this scenario, it may be best to update the will so it complies with your new state’s requirements. Similarly, if you are married, you should also investigate the state’s marital property laws. Most likely, you will find that your will is still valid, but if your new state’s laws differ, you should consider revising your will to be sure.
Getting Ready to Sign
In many cases, you can save time and money by drafting your own estate planning documents using FindLaw’s do-it-yourself estate planning tools. However, if your estate is complex, you may have questions about writing a will and ensuring its validity. In this case, you can seek legal advice from an experienced estate planning attorney in your area.
