Rules for Witnessing a Will

By David Carnes

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.

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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.

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Verifying Authenticity of a Last Will & Testament

References

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How to Prove a Will When Your Subscribing Witnesses Are All Dead or Unavailable

Wills can be an effective estate planning tool for distributing property after your death. But, for its terms to be honored when you pass away, most states require someone who was present at the time the will was signed to attest to the document's validity. Knowing how a will can be verified if all witnesses either pass away or cannot be found will help ensure that your property passes according to your wishes.

What Is the Act or Process of Proving the Validity of a Will?

Before a court can probate a will, it must determine that the will is valid and authentic. Although laws vary from state to state, proving the validity of a will generally entails ensuring that it was created and signed by the person executing the will, called the "testator," and that it complies with state law. In most states, a will can be prepared in a way that eliminates any additional action on the part of the executor during the probate process.

Will and Probate Requirements in Kentucky

When a person dies in Kentucky, most of the property in his estate passes through the state's probate process. During probate, the executor -- the person named in the deceased's will to administer the estate -- collects the assets and dgtermines their value. The deceased's will must be authenticated before the property is distributed to the beneficiaries as instructed in the will. Certain assets, including property owned jointly, life insurance policies and any property in trust, can avoid probate and will pass automatically to the named beneficiaries.

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