Witness Requirements for a Valid Will

Some people decide to create their own will, perhaps by purchasing computer software and preparing one with the help of a program. Upon completing the written portion of the will, it is likely there will be instructions on how to get it witnessed in order to make it valid and enforceable in a court of law. One of the most important issues in a court of law is the valid authentication of legal documents. Witnesses play a critical role in this process.

Why do I need Witnesses when I sign my will?

Witnesses are people who have personally seen events taking place that can help verify the authenticity of a document as your will. Witnesses can also testify that you were of sound mind and are fully aware of the creation of your will and that you were aware of its contents at the time of your signature. You and your witnesses are best served by signing your will before an attorney or a notary public, people who can verify that the process took place and using their seal on the document to confirm that the signatures are genuine. Your witnesses do not need to know what is contained in your will, only that you are sure that this document is your will and that you are satisfied with its contents.

What is required of a witness to a will?

Other than signing the will stating that they witnessed it, they may be called upon to testify if the will is ever contested. Your witnesses must be competent themselves so they can validate the will if it is being contested. Competent doesn’t mean “smart” – it means of sound mind and that reliable testimony can be provided for authentication purposes. The witness should also be an adult, which is usually the age of 18.

Who can serve as a witness to a will?

If a witness stands to gain in any way or is named as a beneficiary of the will, they cannot serve as a witness. You should only choose someone as a witness who does not have a conflict of interest or potential bias. For example, if your son was an heir and witness to your will and to receive 75% of your estate, your daughter who only gets the 25% remaining might object to the will’s validity. Beneficiaries who have witnessed the will may be disqualified in some states. Their portion of the inheritance may limited to the amount a witness can receive to an intestate share. This means they will only be given what they would have received if you had died without a will.

Who should I choose to witness my will?

Choose two people whom you trust and who are not family members and that you expect to outlive you. You should not just choose someone unknown to you unless absolutely necessary. Sometimes your witness may have to testify that your will is valid, to the best of their knowledge, which frequently happens when a third party challenges the validity of a will. It is best to have a related party to provide a better sense of assurance that trustworthy people were involved in the creation of this important document.

How many witnesses are required?

Almost every state requires at least two witnesses although some states require three. If you are not sure about how many your state requires, you can ask a local attorney or you can search online to find information about the requirements of your individual state. In certain special circumstances a legal document be self-authenticating (also known as a “holographic will”) where no additional evidence is needed for the court to conclude that a document is genuine. However, such a measure is usually a last resort and it is not advisable to rely on this process.

What does “publication” of the will mean?

“Publication” is the act of physically showing your will to your witnesses or “making it public.” You do not have to let the witnesses read your will although they should probably be familiar with some portion of your will, such as a revision number and date, so that they can testify that this document is the will they saw you sign and which they signed.

When and how do witnesses sign a will?

Witnesses are required to sign the will in your presence and you must realize and acknowledge that they are signing your will. Witnesses do not have to see you sign the will if you personally state that the document you are showing them is your will and that you have signed the will. Your witnesses should view your signature on your will. It is not necessary to have both witnesses sign simultaneously and in the presence of each other, although it could be helpful later should the will be challenged.

Can my executor serve as a witness my will?

The person you choose to be your executor can be a witness too if they are not also a beneficiary or stand to gain a benefit from your will. As stated above, it is optimal to choose someone who does not have any appearance of a conflict of interest or have bias. If possible, it is advisable to speak to an experienced Estate Planning Attorney to make sure that you are in compliance with your state law.

Michael M Wechsler, Esq.

Michael M. Wechsler is an experienced attorney, founder of TheLaw.com and former SVP of Zedge.net. He has published hundreds of articles online covering a variety of legal topics and regularly provides free legal advice at The Law Forums.

Michael M Wechsler, Esq. – has written posts on TheLaw.com Guide.