Without witnesses, a will may not be valid in probate court
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 then it must be signed by two witnesses who can confirm that you were of sound mind. A will that has not been properly witnessed according to your state's requirements is not a valid will, and may fall apart during probate and leave a gap in your estate plan.
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Every state has their own will witnessing requirements, including who can be a witness to a will and guidelines for 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. Handwritten wills may also need witnesses, unless the state law says otherwise.
It’s best practice to choose a disinterested witness for a will who isn’t a beneficiary.
An attorney can be a witness to a will, but a notary public who notarizes the will can’t serve.
Almost all states require two witnesses for a will to confirm the intentions and signature of the testator.
You don't need witnesses for holographic wills, which aren’t legal in all states.
Witnesses to a will are people who can attest to the identity of the person signing the will (the testator). They must be able to confirm that the testator was in the right frame of mind, having sufficient mental capacity to sign the will — called testamentary capacity — as well as testamentary intent. It’s the job of the witnesses to make sure the testator isn’t signing the will under pressure from someone else.
Most states require the witnesses to be mentally competent adults, though some states allow for witnesses under the age of majority. For example, the age requirement for a witness to a will is only 14 years old in Texas.
Many people may think of choosing a family member or close friend witness a will, but it’s likely that your loved ones are also beneficiaries of the will, which won’t work. It is usually necessary for the witnesses to be "disinterested," meaning they do not stand to benefit from its terms. If you have a beneficiary witness your will, then you should include an additional disinterested witness to compensate, or else the probate court might penalize the witness-beneficiary by limiting their inheritance if they find that they’ve had undue influence on the testator.
At the end of the day, opting for two independent witnesses from the start can help you avoid any potential conflicts of interest.
Instead of a beneficiary, you might choose close friends or colleagues who will not receive any of your assets or property when you pass away to act as witnesses to your will. Estate lawyers are also common choices.
If you're making your will self-proved and getting it notarized, the notary public cannot act as your witness.
Notarizing a will is optional if it has been properly witnessed — but without notarization, the judge may call upon the witnesses of a will to appear in court to confirm their signatures and make sure the will is real. That's why many people include a self-proving affidavit with their will that requires notarization. You’ll need to bring the will witnesses to the notary public and sign it all together in front of the notary. (A few states may allow you to notarize a self-proved will after it has been witnessed.)
Witnessing requirements vary by state, but commonly:
The testator signs the will.
The witnesses sign the will in the testator’s presence.
A notary public stamps the will if making it self-proved.
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, but this varies by state and you’ll likely need them to be there if you’re making the will self-proved.) In addition to their signatures, the witnesses might also have to provide their address.
The witnesses often have to sign the will in front of the testator — so 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 California will law says that two witnesses of a will must simultaneously be present to watch the testator's sign or to hear the testator's acknowledgement of such. But in Connecticut the witnesses to a will must sign in in the testator’s presence, 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.
After the testator passes away, probate or the process of administering an estate and proving the will begins. If you write a will and without fulfilling your state’s witnessing requirement, then the probate court may declare the will invalid. Your assets and property could be distributed as if there was no will at all, according to the state laws of intestate succession, leaving your valuables to someone you didn't want to have them.
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