Most legal documents require a signature to make them valid. Once they are signed, they’re good to go. When you sign a Will, usually you need at least two adult witnesses and a notary must be present to actually watch you sign the document so it will be easily admitted to probate. This is called a self-proving affidavit. If you live in a jurisdiction that allows it and your Will does not have a self-proving affidavit, it is a longer and more expensive process to get your Will allowed.
Why Are Witnesses Required When Signing a Will?
A Last Will and Testament determines how your assets are to be distributed after you die. It also allows you to name a guardian to care for your minor children if something happens to you. Your Will is the foundation of your estate plan.
Since a Will goes into effect upon your passing, many years – even decades – could elapse between the day you signed it and the day you pass away. And since you are not around to dispute any challenges that should arise when the Will is probated, that’s where the witnesses come in.
Basically, the job of the witnesses is to verify that you were of sound mind and not under pressure from someone else when you signed the Will. If the witnesses are called to court, they can corroborate that everything was in order at the time of the signing. This adds a layer of protection for you as well as the terms and wishes you outlined in the document.
If the Will’s signature was not witnessed, contesters could have an upper hand challenging that you were either pressured or mentally incapable when creating and signing the document. This could result in a costly and lengthy legal battle for your loved ones.
Related Article: Mental Capacity Requirements in Estate Planning
What is the Process of Witnessing a Will?
Each state has its own regulations when it comes to the process of creating a Will. As part of that process, most states require two people to witness the testator (the person creating the Will) sign the document. Vermont requires three witnesses. Two states – North Dakota and Colorado – allow the option of having a signature notarized or witnessed.
Here is the process of signing your Will:
Who Can Be a Witness to a Will?
Again, state laws vary, but in most cases, these are the requirements for witnesses:
- Adults only – Witnesses must be at least 18 years old.
- Disinterested parties – Friends, co-workers, or relatives can be a witness; anyone who does NOT benefit from the Will. For example, they should not be a spouse or a beneficiary named in the document. If a witness is to inherit something, it could be a conflict of interest, opening the door to a legal wrangle and the court could void the inheritance of that witness/beneficiary. Additionally, relatives or spouses of any beneficiary should not be a witness.
- Executor – The executor you appoint to oversee your Will could possibly also serve as a witness as long as they are not the spouse, a beneficiary, or civil partner of a beneficiary. It depends upon your jurisdiction.
Related Article: Checklist: How to Be an Executor of a Will
When choosing witnesses, make sure they would be available and willing to testify if called to probate court to verify the validity of the Will if it is contested.
Are All Wills Subject to Witnesses?
All but one: a holographic Will. This is a document completely handwritten and signed by the testator. It is not required to be witnessed or notarized. Some states do not recognize this type of Will and it can open a can of worms when it goes through probate; the testator’s mental capacity and any illegible parts of the document can be contested.
Storing Your Will
Once your Will is created and set to go, you need to safely store it where it can be easily accessed. Gentreo’s Digital Family Vault is the perfect solution where you can store and access your Will, estate plan, and other important documents. With just a couple clicks, your documents can be accessed from anywhere anytime by you and those you choose. And don’t forget, you need to review and update your Will and estate plan periodically.
Creating Your Online Will with Gentreo
Our coaches are available to help you select and customize an estate plan for your situation. Need a little legal advice on what the estate planning laws are in your state? You can connect to our network of third party, licensed estate planning attorneys to get the right answers.
As we go through life’s journey, things change. Gentreo is with you through all your life events.