Trusts and Estates

Witnesses to a Will

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In addition to your own signature your will needs to be signed by witnesses. This doesn't apply if you're making a simple will in your own handwriting.

The Purpose of the Witnesses

The main role of witnesses is to ensure that you have the mental capacity and intent to make a will. An attorney will ask "is this your will" in front of witnesses. The witnesses have the ability to observe you and your actions during this time. Witnesses are there to certify you have made the will, but they don't have to know the will's contents.

The Requirement of the Witnesses

If a will is contested, a witness may be called on to testify about the signing of the will. Witnesses that are likely to survive you should be selected. They should also be competent and credible to be able to testify persuasively should the validity of the will is questioned.

Who Should Not Be a Witness

There are times when it can't be helped, but in the best of circumstances, a witness to a will shouldn't benefit from the will. This could create a conflict of interest if the person is called on to testify about the will's validity. Some states actually disqualify beneficiary witnesses.

If the witness is a beneficiary, most states limit what that person can receive under the will to the intestate share. This is the amount they would have been entitled to if you died without a will.

The Number of Witnesses Required

In most states, two witnesses are required. In some states, three witnesses are required. Your lawyer can advise you as to the number of witnesses required in your state.

Publication of the Will

It's customary, although not required in most states, for the testator to physically show the will to the witnesses for their signatures. This action is known as publication of the will. Remember, the witnesses don't have to know the contents of the will; they just need to see that the testator has a document referred to as her will.

Signing in the Testator's Presence

Witnesses must sign in the testator's presence (i.e. in front of testator and the testator must know that the witness is signing the will). Generally, the witnesses don't need to see the testator sign the will, as long as she states to the witnesses that the document is her will. One the other hand, witnesses don't have to necessarily sign the will in front of other witnesses.

A will's validity depends on many factors, including who acts as witnesses for your will. The person must be impartial in case they're called to testify about your will's validity and your competence at the time of writing it. Remember, your will is going to be interpreted by someone you don't know and at some future date. You won't be around to make sure your wishes are fully granted.

Questions for Your Attorney

  • Can my witnesses sign my will in each other's presence?
  • Can I show my witnesses the contents of my will if I want to?
  • Can a stranger can be my witness or do I have to pick someone I know to be a witness?
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