Wills allow individuals to avoid the state’s rules about who gets what portion of a decedent’s estate. They also allow individuals to name their executors, name a guardian for their children and bequeath specific items to certain individuals. However, if a will is not properly executed, the will can be invalidated and the rules of intestacy (dying without a will) can apply.
Purpose of a Witness
Having a witness is required in many jurisdictions because of the potential that a person was under duress or not of sound mind at the time that he or she signed the will. A witness helps to validate the will as being representative of the testator’s final wishes.
Many states permit holographic wills. These wills generally do not need to be witnessed. However, there may be state laws that require that the entirety or that material provisions of the will be in the testator’s handwriting. If this requirement is not met, such as by a testator handwriting in certain information in blanks on will templates, the will would have to satisfy the rules of attested, or witnessed, wills. Otherwise, it could be invalidated.
Some states require witnesses if the will is signed by a mark or at your direction but not in your writing. Pennsylvania has this requirement. Additionally, witnesses may have to appear in probate court to confirm that your signature is yours after you die.
Some jurisdictions permit nuncupative, or oral, wills. These wills may be deathbed wills that are created upon necessity when death is imminent. Jurisdictions differ as to the requirements of witnesses. However, most jurisdictions that allow nuncupative wills require there to be at least two witnesses to the will. One of the witnesses may be responsible for writing down or directing someone to write down the content that the dying individual requested in the will.
Other types of wills, such as those prepared by an attorney or typed out, usually require witnesses. The Uniform Probate Code, adopted at least in part by 20 states by the year 2015, requires the signature of two witnesses.
Rules on Witnesses
Generally, a witness must be at least 18 years old. However, there are exceptions to this rule. For example, Texas allows witnesses who are at least 14 years old. For attested wills, most states require two witnesses.
Many states have requirements that witnesses be disinterested, meaning that they do not stand to inherit from your will. Some states permit interested witnesses, but they may require more than two witnesses if one or both of them are interested. Some states allow the executor of the will to be a witness while others ban this practice.
Generally, witnesses do not have to sign the will in front of each other. Additionally, some states do not require the witnesses to sign the will itself and instead allow them to sign a separate document that acknowledges the will.
Responsibility of Witnesses
A witness must be able to testify that the formal ceremony and execution steps were fulfilled. For example, the witness may need to be able to say that he was asked to sign the document which was identified as the testator’s will. Additionally, a witness may need to state that she was in the presence of the testator at the time that she signed the will. A witness may also be asked about whether the testator appeared to be of sound mind and was aware of the will’s creation and its contents when he or she signed it. The witness does not usually have to read the will itself simply to testify about it.
While state laws vary, witnesses should be able to see each other and the testator. While some states do not require this and have a broad definition of being “in the testator’s presence,” other states require strict compliance with will formalities. Additionally, the will should be signed by the witnesses at the end to avoid confusion and legal challenges.
This may be accomplished by a witness asking questions during a probate court hearing when the will is being sought to be admitted to the court. Alternatively, witnesses in most states can complete a self-proving affidavit with the will, stating that the will was properly executed. This usually requires a signature by a notary public. However, if the will is contested, the witnesses to the will may be called on to testify about the will and its creation.
Provided by HG.org