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.

Protect your loved ones. Start My Estate Plan

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.

Protect your loved ones. Start My Estate Plan
How the Executor Breaks a Will
 

References

Related articles

Who Enforces the Execution of a Will?

In drafting your will, you may appoint a person to serve as your executor, also known as a personal representative. This person will have the responsibility of carrying out your wishes pursuant to the will. Because the executor has a number of responsibilities and can be held personally responsible if they are not properly carried out, carefully consider appointing someone who is trustworthy and capable of carrying out the somewhat complicated probate process.

Does the Executor of Will Debt Need a Beneficiary's Signature to Pay Off Assets & Debts?

When an individual creates a will, he will likely name a personal representative, or executor to handle his estate. The executor of an estate is charged with managing estate assets, including paying estate debts such as funeral expenses and estate attorney fees. The executor will also ultimately make distributions to those named in the will, known as the beneficiaries.

How to Break a Will or Probate

Probate is court-supervised administration of a testator's last will and testament. Upon the death of the person making the will, the executor files the will in probate court and begins to gather and inventory estate assets. Although the executor is usually selected by the testator and named in the will, the court reviews the procedure to assure honesty, accuracy and fairness. The court only approves a valid will, so anyone wishing to "break" a will or probate must allege and prove facts making the will invalid.

LegalZoom. Legal help is here. Start Here. Wills. Trusts. Attorney help. Wills & Trusts

Related articles

Verifying Authenticity of a Last Will & Testament

The maker of a will, commonly known as the "testator," must draft the will in accordance with the state's probate code ...

Number of Witnesses Required for Signing a Will in Alabama

Many states recognize a last will and testament as valid even if it is handwritten with no witnesses to the maker’s or ...

Self-Proving Will Statutes in New York

Writing a valid will ensures that your property is divided according to your wishes. If you fail to make a will, or if ...

Contesting a Will as a Beneficiary

Will contests take place in probate court: One of the functions of probate court is to hear any disputes pertaining to ...

Browse by category
Ready to Begin? GET STARTED