A will that doesn't have the signatures of witnesses may not be valid in court.
Most states require two witnesses, or people to confirm the intentions and signature of the testator (will writer)
A will that has not been properly witnessed, according to your state’s requirements, is not a valid will
Handwritten wills do not need to be witnessed
After you create a last will and testament, a few more things need to be done to make it a valid legal document. First you must sign the will, and two witnesses who can attest to your intentions must also sign the will. A will must be properly witnessed so it can be proven in court after you pass away. During what’s known as probate, a judge decides whether the document is a legitimate will.
The exception is handwritten wills or holographic wills. These wills don’t require witnesses because they’re typically created in haste when the testator is in a life-threatening situation or under duress and near death.
Every state has their own will witnessing requirements, including who can be a witness and how the witnessing should be executed. If they aren’t followed, then a will can be thrown out in court after the testator passes away. That’s why a well-constructed and properly witnessed will is an essential part of any estate plan that helps distribute your assets to your chosen beneficiaries and loved ones.
The role of the witness is to attest to the identity of the person signing the will. The witnesses sign the will after acknowledging and confirming certain facts required by state law, usually including the following:
Most states require two witnesses who are mentally competent legal adults, though some states allow for witnesses under the age of majority. For example, you only need to be 14 years old to witness a will in Texas.
It is usually necessary for the witnesses to be “disinterested,” meaning they do not stand to benefit from the will. Though most states won’t prevent you from using an interested witness (like a son or daughter who stands to inherit everything), they might require you to include an additional disinterested witness to compensate, or they might penalize a witness by limiting how much they can inherit.
At the end of the day, a disinterested third party can help you avoid any potential conflicts of interest. You might choose close friends or colleagues who will not receive any of your assets or property when you pass away. Lawyers are also common choices for will witnesses. Your appointed executor can also act as witness, but keep in mind that they may also be a considered an “interested party.”
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Witnessing requirements vary by state. Before signing it themselves, the witnesses typically watch the testator sign the will, but in many states it is simply enough for them to hear the testator acknowledge the fact. (In other words, witnesses do not always need to be physically present to watch you sign your will.) In addition to their signatures, the witnesses might also have to provide their address.
While the testator might not sign the will in front of the witnesses, the witnesses often have to sign the will in front of the testator — meaning you can’t mail your will to a witness, have them sign it, and send it back to you. Also, sometimes the witnesses may have to sign in front of each other.
For example, in California, two witnesses must simultaneously be present to watch the testator’s signing or to hear the testator’s acknowledgement of such. In Connecticut, the two witnesses must sign in front of the testator, but don’t have to do it at the same time.
Some states may even set a time limit as to when the will should be witnessed. For example, in New York the witnesses must sign the will within 30 days after watching the testator sign or after getting the testator's acknowledgement.
Will witnessing requirements vary by state and a professional like an estate planning attorney can tell you the rules in your area so you can be sure to have a valid will.
Notarizing a will is optional if it has been properly witnessed, but without notarization, the judge may call upon the witnesses to confirm their signatures and make sure the will is real. That’s why some people include a self-proving affidavit in their will and get it notarized. To do this you may need to bring your witnesses to the notary public and complete the witness all together, but states may allow you to notarize the will after it has been witnessed.
If you’re getting your will notarized, the notary public cannot act as a witness.
Learn more about why you might want to notarize a will.
After the testator passes away, probate or the process of proving the will begins. If you write a will and don’t fulfill the witnessing requirement, then your assets may be distributed as if there was no will at all according to the laws of intestate succession. Your valuables may make their way to someone you didn’t want, usually based on blood-relations. For example, any real estate property intended or your niece might go to your estranged son.
Note that if you at any point update your will by adding a codicil you must have it rewitnessed to make it valid.
Wills are just one way to bequeath property and belongings to someone. You may also want to use a trust. You can fund a trust with assets of your choosing and have those assets be distributed when you die; any assets you place in the trust may be distributed without probate. Additionally, if you have a pour-over will, you can direct that your assets go into the trust when you die, which could expedite the probate process. As with a will, you may still need witness for your trust document.
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Elissa is a personal finance editor at Policygenius in New York City. She writes about estate planning, mortgages, and occasionally health insurance. In the past she has written about film and music.
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