Rules for Witnessing a Will

by David Carnes
    In many states, witnesses must sign the will in the presence of the testator.

    In many states, witnesses must sign the will in the presence of the testator.

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    A last will and testament is a powerful legal document that instructs the executor of an estate how to distribute the property of the writer of the will, known as the testator, after he dies. Because of the potential and motivation for fraud, state governments have passed laws imposing strict restrictions on the format of a will. All states require that the testator's signature be witnessed.

    Purpose of Witnesses

    The signing of a will must be witnessed for two main reasons: First, witnesses can confirm that it was actually the testator whose signature appears on the will. For this reason, witnesses should be familiar enough with the testator to confirm his identity. The second reason for the witness requirement is to confirm that the testator was mentally competent -- that he was aware of the will's nature and contents at the time he signed it.

    Witness Qualifications

    A witness must be at least 18 years old and mentally competent. To avoid potential conflicts of interest, most states disqualify witnesses who are named as heirs in the will. Some states, such as Illinois, disqualify the executor of the testator's estate. If a lawyer drafted the will, he may not serve as a witness. At the time of publication, all states require two witnesses to the signing of a will except for Vermont, which requires three.

    Signatures

    The probate law of most states requires witnesses to sign the will. In many states, however, a will is still valid even if witnesses don't sign it, as long as they take the witness stand during probate proceedings to confirm that they witnessed the signing of the will. Many states require witnesses to sign the will in the presence of both the testator and each other.

    Self-Proving Affidavits

    A self-proving affidavit is a statement by a witness that he witnessed the signing of the will and that the testator was mentally competent when he signed it. The witness must sign a self-proving affidavit in the presence of a notary public after presenting acceptable identification. The notary must then sign the affidavit and affix his seal to it. Knowingly making a false statement in an affidavit is punishable as perjury, a criminal offense, unless the false statement is of negligible importance. Although no state requires the preparation of a self-proving affidavit, using one can persuade a probate court not to require the witness to take the stand at a probate hearing. It can also help resolve doubts about the validity of the will, especially if the witness did not sign the will.

    About the Author

    David Carnes has been a full-time writer since 1998 and has published two full-length novels. He spends much of his time in various Asian countries and is fluent in Mandarin Chinese. He earned a Juris Doctorate from the University of Kentucky College of Law.

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