Who Can and Cannot Be a Witness to a Will?
A valid will must be signed by at least two witnesses who are of age and sound mind – but who really qualifies? Learn best practices for choosing your ideal witnesses.
Having your last will and testament signed indicates that you meant what you said. A court may throw out your will without valid signatures from disinterested witnesses. This article will help you choose witnesses whose signatures will withstand scrutiny by probate courts.
Why Do I Need Witnesses?
Your witnesses play an important role in verifying that your will reflects your intentions. Their signatures indicate three critical things:
The person signing the will is truly the testator (that is, the will-maker is signing the will)
The testator is of “sound mind” or has “testamentary capacity” (they understand what they are signing)
The testator is not being manipulated or forced into signing the will
These signatures offer a layer of security around your will. For example, signatures make it more difficult for an heir to challenge your will if they are unhappy with what they do or do not receive.
Do All Wills Require Witnesses?
A traditionally written will and testament requires witnesses, but not all wills do. Handwritten wills (also called holographic wills) do not always require witness signatures, but not all states legally recognize them. By its nature, an oral (“noncupative”) will must be witnessed, or nobody would know about it. However, oral wills are not recognized in most states.As always, check your state laws for details on what type of wills are legally acceptable.
What Are the Requirements for a Witness?
State laws for witness requirements vary but always have these conditions in common:
Witnesses must always be of sound mind, meaning they have the mental capacity to understand what they are doing and can make their own decisions.
Witnesses must be of the age of majority, which usually means being a legal adult. Some states, like Texas and Georgia, allow minor children as young as 14 years old to be witnesses.
Witnesses must be disinterested, which means they do not benefit from the will. Your spouse, beneficiaries, and spouses of your beneficiaries are not good choices for being a witness.
Other variations in state law include the number of witnesses required. All states require at least two, but some require three. Witnesses are only required to read your entire will if they are signing a codicil.
Does My Witness Need To Be Physically Present?
Some states emphasize that your witness must physically see you sign your will. This rule has several implications. For one, this requirement means people who are blind or visually impaired cannot witness a will. Second, it means you cannot obtain a witness signature by mailing a will back and forth.
A few states have adopted the Uniform Electronic Wills Act of 2019, which legally permits wills that have been digitally created, signed, and filed. Some states also allow remote witnessing of wills where the will signing process takes place over a video call. One of the main concerns about “remote witnessing” is that there is no way to know what is happening off-camera, and the person signing the will may be doing so under duress. Unless you are sure that your state permits electronic signatures and remote witnessing, it is safest to have your witnesses sign your will in person.
What Happens if My Witness Does Not Meet the Requirements?
If your witness or signing process does not meet the state requirements, the probate court may throw out your will as invalid. If your will is invalid, the court does not have to follow it and can consider you to have died intestate (meaning without a will). At that point, the court will distribute your assets via intestate succession laws.
Who Should My Witnesses Be?
The state legal requirements make it sound pretty easy to find a witness. However, pulling someone in off the street is not advisable, nor asking your close relatives to serve as witnesses. Just because a person meets the legal qualifications as a witness does not mean they are the best choice.
Your witness should know you so they can attest to the fact that you were of sound mind when you signed your will. This person also may need to appear before probate court to testify to the will's validity. Choose someone you know and trust and who is unlikely to pass before you do.
Choose an Uninterested Third Party
Witnesses should be “disinterested,” meaning they are not a beneficiary of the will. In short, if a person will be receiving any of your assets, they should witness your will. If your witness is a beneficiary, a court can invalidate any assets designated for them in the will, as they may have exerted undue influence over the will-maker. This probably eliminates your spouse, children, close friends, and family members. Who does that leave?
Although you should not name any spouses of your beneficiaries as a witness, it is fine if your witnesses are married to each other. Domestic and civil partners should be treated like spouses in these situations.
An attorney can witness a will, even if they drafted the original will or serve as the executor. However, your attorney cannot be your witness if they benefit from your will.
What if My Witness Dies Before Me?
Sometimes, a probate court will ask for a witness to testify to the will's validity. This may happen if, for example, somebody contests the will. If your witness is no longer alive, it will not invalidate your will. Unfortunately, it could result in a delay (and extra costs) for your surviving family.
One way to circumvent witnesses getting involved in the probate process is by using self-proving affidavits. This type of legal document is evidence that helps prove that the will is valid. It requires the witness to sign an oath, under penalty of perjury, that they saw the testator freely sign their own will. The witness signs the affidavit in front of the testator and a notary public.
Make a Valid Will Online
Making a will may sound daunting, but it can easily be done online. FindLaw has state-specific last will and testament forms that are quick and straightforward to use.
A will is only one part of a comprehensive estate plan. You should also name a financial power of attorney, who can manage your financial affairs in case you are unable to. In case of a medical emergency, it is important to have a living will and advance directive to communicate your health care preferences. You can find state-specific forms here:
However, if you have complicated estate planning needs, or concerns about state law requirements, it is best to seek legal advice from an estate planning attorney.