When you make a formal will, you and two witnesses must sign the document.
The Purpose of the Witnesses
Witnesses witness that you have the mental capacity and intent to make a will. The witnesses see you and your actions during this time and can later testify to your state of mind if it is ever called into question. Witnesses are there to certify you have made and signed the will, but they don't have to know the will's contents.
Witnesses should be credible adults who are likely to survive you, as they may need to testify about the signing of your will after your death. To reduce any potential conflict of interests, witnesses should not be named beneficiaries in the will. Although some states may permit named beneficiaries to serve as witnesses, some may also limit how much witness/beneficiaries can receive under the will. It is far better to select someone who is not named in the will at all.
The Number of Witnesses Required
In all states, two witnesses are required to make a will valid. You can have more than the required amount, and this may help if you’re worried about any of your witnesses not surviving you.
Showing the Witnesses 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. Again, the witnesses don't have to know the contents of the will; they just need to see that the testator is presenting a will to them.
Signing in the Testator's Presence
Witnesses must sign the will in the testator's presence. In most states, the witnesses don’t need to see the testator sign the will, nor do witnesses need to see other witnesses sign. However, it is traditional that the testator and the witnesses all sign at the same time.
Using a Self-Proving Affidavit
In most states, the testator and witnesses can sign an affidavit that swears to the witnessing of the will. Doing helps the will go through probate, because it eliminates the need to get declarations from the witnesses after the testator’s death.
You can usually find the language for a self-proving affidavit in your state’s statutes. The testator and the witnesses must all sign the affidavit in front of a notary public. And then the affidavit is attached to the will. (The will document does not need to be notarized in any state.)
Making a self-proving affidavit is optional, and it has no bearing on the validity of the will itself.
A Lawyer Can Help
You can make your will yourself using good self-help products. But if you have a complicated situation, if you want to impose controls on property after your death, or if you just want to have a professional take into account your individual circumstances, see an estate planning lawyer for help.
Questions for Your Attorney
- Do I need to make a new will if one of my witnesses dies before me?
- Is it okay to have a stranger witness my will?
- My neighbor has been diagnosed with autism, can he witness my will?