Key takeaways about wills and witnesses
To be valid, a will needs two witnesses to its signing, who then sign it themselves.
Anyone can be a witness as long as they are over 18 and not one of the beneficiaries in the will.
Often the lawyer who draws up the will is one of the witnesses; this is OK even if the lawyer is named the executor.
If the will is contested, a probate court may call on the witnesses to testify to the person's state of mind when signing.
If your loved one left behind a will, it will need to be verified in a court before you can begin to honor their wishes by carrying out its instructions. This is generally a straightforward process, but you should familiarize yourself with the basic requirements in case any issues arise. You’re already dealing with a lot, and a challenge to the validity of the will can add unneeded stress.
Because a will is an official, legally binding record, it needs to be witnessed: At least two people other than the maker of the will must be present when the document is signed, and then they must sign the document themselves to verify that they witnessed the signing.
Witness to a will is an important role, because it ensures that the person signing the will is making decisions based on their own desires, and it provides protections for those wishes down the line.
There are some requirements for who qualifies to be a witness. If they are not adhered to, the will is considered invalid and the courts and state law will decide who inherits instead.
Why do you need witnesses?
Simply put: A will needs witnesses because the person who is signing the document will not be there to speak to it when it becomes relevant. In case someone decides to contest the will, the witnesses will be able to testify to the person’s state of mind and intention. It’s a system designed to protect their wishes and their beneficiaries.
While not everyone can be a witness, the requirements are not difficult to meet. Typically, a witness must be over 18 and “disinterested,” which means they are not a spouse or beneficiary. If a beneficiary is also a witness, their inheritance outlined in the will could be voided, but the rest of the will is usually still considered valid.
However, it must be noted that because they need to attest to the state of mind of the person signing the will, witnesses should know them personally and be able to speak to their rational decision-making.
It is totally OK, and very common, for the lawyer who draws up the will to act as one of the witnesses, whether or not they are named the executor in the document.
If a beneficiary is also a witness, their inheritance outlined in the will could be voided, but the rest of the will is usually still considered valid.
Some states have different regulations, however, so be sure to familiarize yourself with the local laws. For example, North Dakota and Colorado allow a will to be notarized rather than witnessed.
The procedure of witnessing a will
The process of signing a will usually involves a lawyer and possibly a notary. Everyone gathers in a room, commonly a lawyer’s office, and then:
The testator (the person signing the will) declares out loud to the witnesses that they are about to watch as he or she signs the will.
The witnesses are required to watch the testator sign the document.
While everyone is still together, the witnesses initial and sign the will, and potentially an affidavit as well.
A witness affidavit is a statement attached to the will declaring that the witness knew the document was a will, saw the testator sign it, and that the person is of sound mind and not under the influence of anyone else.
In some states, a will with such affidavits is accepted as a “self-proving will,” meaning the court will accept the affidavits as the witnesses’ testimony and will not call on them to testify. This can be very useful if many years have passed between the signing of the will and the person’s death, as witnesses may have moved out of the area or passed away themselves.
In other states or in other situations, witnesses may be called to testify on the behalf of the estate. In rare cases, a will might be contested during the probate process on the grounds that the testator was not making decisions in their best interests or on their own initiative. If such a challenge is brought, the judge will schedule a hearing at which the witnesses might be called upon to speak to their impressions of the person’s state of mind and the procedures that were followed during the signing of the will.
Having witnesses to a will might seem like a purely bureaucratic, check-the-box step to take care of as one plans the distribution of an estate, but they are instrumental in ensuring the beneficiaries are provided for. In most cases, without witnesses, a will isn’t valid and the estate property might not end up where it was intended to go ●
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