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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A will is the legal document you use to name beneficiaries for your personal and real property, appoint an executor or personal representative to oversee the distribution of your estate, handle estate taxes, and pay your funeral expenses. You can also choose a guardian for your minor children and a caretaker for your pets. Some people use living trusts to distribute assets upon their death, but there are many differences between wills and living trusts.
As with most legal documents, the devil is in the details. Because you are not available to protect your own estate after your death, there are a number of legal requirements meant to guard against the misuse of your signature. This article explores some of the requirements shared by states for properly signing a will and potential strategies to help you avoid complications.
Testator Requirements and Signature
Of course, one of the most important signatures to make a valid will is yours. When you are making a will, you are known as the “testator.” When you die, you are then called the “decedent.” As the testator, you must meet certain requirements when signing your will. Typically, this means a signature block declaring yourself to be an adult of sound mind. All other signatures are meant to ensure the integrity of your signature and confirm your “testamentary capacity.” This is a legal term used to describe the testator’s legal and mental capacity to make a valid will.
Confirmation that you have the legal and mental capacity to make your own decisions is very important to ensure the proper distribution of your estate after your death. In particular, the law wants to make sure that someone lacking the mental capacity to make a will is not taken advantage of. This is why witnesses are necessary to confirm a testator is of “sound mind” when signing a will.
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Witness Requirements and Signatures
So, who else’s signatures are required? Wills must be signed in the presence of witnesses. Currently, all states require at least two witnesses, but laws and other requirements can change. Before you sign your will, check your current state laws to confirm what’s necessary in your state.
Witnesses must typically watch you sign while in each other’s presence. Among other things, this helps to 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 together. This helps avoid complications down the road.
Most states also require that witnesses be at least 18 years old, but there are exceptions. For example, Texas only requires that you sign before credible witnesses who are at least 14 years old. Though states vary as to other witness requirements, the common denominators are credibility, neutrality, and disinterest. An “interested witness” is someone who has an incentive to lie, most likely because of an interest in personal property, real estate, bank accounts, or some other asset making up your probate estate.
For example, your heirs (individuals who inherit based on their descent from the you, including family members or a surviving spouse) and your named beneficiaries (individuals otherwise selected to receive a portion of your estate) are typically not allowed to act as your witnesses because they have an interest in the division of your estate assets. Similarly, a lawyer who drafts your will cannot act as your witness. Again, you should check your state’s current requirements as to who can and cannot be a witness.
“Holographic wills” are discouraged. These are handwritten wills and are binding in about half of the states if there is proof that the testator was competent and handwrote, signed, and dated the document. No witnesses are required. Holographic wills tend to raise suspicion and are susceptible to legal challenges because of their highly informal nature. So, these wills should almost always be avoided to prevent potential disputes later.
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 probate estate after you die. “Probate” can also refer to the process of distributing a deceased person’s estate according to state intestacy laws in the event the decedent dies without having made a will. Your “non-probate” assets are not required to pass through the probate process after your death and can include things like life-insurance policies and financial accounts held jointly or that already include a beneficiary.
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 the additional step of signing before a notary, this helps to avoid much larger issues and sometimes even additional expenses during the probate process.
Notify Your Executor
An “executor,” also called a “personal representative” in some states, is the person you select in your will to act on behalf of the estate and carry out your instructions when you die. They are fiduciaries and should be chosen carefully for competence and trustworthiness.
Keep your original will in a safe location and make sure your executor or personal representative knows where it is. Many people choose to store their original will in a fire-proof safe within their home or 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 is the existence of multiple wills. Be sure to date and sign any new wills clearly and make sure your new will clearly states that it supersedes any earlier wills. You can accomplish this using a codicil. This is 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, invite speculation that you destroyed the original with the intention of revoking it. Arming the executor or personal representative of your estate with the original copy of your most current will is the best way to avoid these complications.
Change of Residence
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, you can avoid potential complications and expedite the probate estate administration process by confirming your will complies with your new state’s laws.
For example, suppose you make a will while residing in Texas, and one of your witnesses is 15 years old. Then you later move to a different state. While you may have created a valid will in Texas, it can be a good idea to update your will and ensure it complies with the laws of your new state where witnesses are likely required to be at least 18 years old.
Ready to Sign Your Will?
In many cases, you can save time and money by drafting your own last will and testament without paying for expensive legal advice or hiring a probate lawyer. Trust & Will’s do-it-yourself estate plan forms include a last will and testament, financial power of attorney, and health care directive and living will. You will need to sign and finalize your documents according to your state’s requirements for signatures, witnesses, and possibly a notary. Luckily, Trust & Will’s downloadable forms include instructions on how to properly sign and finalize your will on the cover page to ensure your will is properly executed.