A will is an important part of your financial plan. When you write a last will and testament, you’re creating a legal document that determines where your assets will go after your death. You can also use a will to name legal guardians for minor children. When making a will and testament, it’s important to follow the rules in your state to ensure the will is valid. One of those rules centers on the requirements for witnesses. For more guidance on the intricacies of wills and estate planning, consider enlisting the services of a financial advisor.
Who Can Witness a Will?
When drafting a will, it’s important to understand several requirements, including who can serve as a witness. Generally, anyone can witness a will as long as they meet two requirements:
- They’re of legal adult age (i.e. 18 or 19 in certain states)
- They don’t have a direct interest in the will
The kinds of people who could witness a will for you include:
- Friends who are not going to receive anything from your estate
- Relatives who are not part of your will, such as cousins, aunts, uncles, etc.
- Your doctor
If you hire an attorney to help you draft your will, they could also act as a witness as long as they’re not a beneficiary. An attorney who’s also acting as the executor of the will, meaning the person who oversees the process of distributing your assets and paying off any outstanding debts owed by your estate, can witness a will.
Who Cannot Witness a Will?
States generally prohibit you from choosing people who stand to benefit from your will as witnesses. So for example, if you’re drafting a will that leaves assets to your spouse, children, siblings or parents, none of them would be able to witness the will’s signing since they all have an interest in the will’s terms. Will-making rules can also exclude relatives or spouses of any of your beneficiaries. For instance, say you plan to leave money in your will to your sister and her husband with the sister being the executor. Your sister can’t be a witness to the will since she’s a direct beneficiary. And since her husband has an indirect interest in the terms of the will through her, he wouldn’t qualify as a witness either.
But married couples can witness a will together, as long as they don’t have an interest in it. So, you could ask the couple that lives next door to you or a couple you know at work to act as witnesses to your will.
You may also run into challenges if you’re asking someone who has a mental impairment or a visual impairment to witness your will. State will laws generally require that the persons witnessing a will be able to see the document clearly and have the mental capacity to understand what their responsibilities are as a witness.
Note that the witnesses don’t need to read the entire will document to sign it. But they do need to be able to verify that the document exists, that you’ve signed it in their presence and that they’ve signed it in front of you.
Why Wills Need Witnesses
A will is a legal document, but in order for it to be binding, there are certain requirements to meet. For instance, although state laws regarding wills vary, states generally require you to be of legal adult age to make a will. You must also have testamentary capacity, meaning you:
- Must understand the extent and value of the property you’re including in the will
- Are aware that you’re making a will to decide who will inherit your assets
- Aren’t acting under duress in making the will
Having someone witness your will matters in case questions come up about its validity later or there is a will contest. For example, if one of your heirs challenges the terms of your will a witness may be called upon in court to attest that they watched you sign the will and that you appeared to be of sound mind when you did so.
In other words, witnesses add another layer of validity to a will. If all the people who witnessed the signing of a will are in agreement about your intent and mental state when you made it, then it becomes harder for someone else to dispute its legality.
How to Choose Witnesses for Your Will
If you’re in the process of drafting a will, it’s important to think about who you’ll ask to witness it. It may help to make two lists: one of the potential candidates who can witness a will and another of the people who cannot act as witnesses because they have an interest in the will.
You should have at least two people who are willing to witness your will signing. This is the minimum number of witnesses required by state will-making laws. Generally, the people you choose should be:
- Responsible and trustworthy
- Age 18 or older
- Younger than you (to avoid challenges presented if a witness passes away)
- Free of any interest in the will, either directly or indirectly
- Willing to testify to the will’s validity if it ever undergoes challenges
When it’s time to sign the will, you’ll need to bring both of your witnesses together at the same time. You’ll need to sign, initial and date the will in ink, then have your witnesses do the same. You may also choose to attach a self-proving affidavit or have the will notarized in front of the witnesses.
A self-proving affidavit is a statement that attests to the validity of the will. If you include this statement, then you and your witnesses must sign and date it as well. Once the will is signed and deemed valid, store it in a secure place, such as a safe deposit box. You can also make a copy for your attorney in case the original will is damaged or destroyed.
Making a will can be a fairly simple task if you don’t have a complicated estate. Let’s say you have significant assets or you need to make arrangements for the care of minor children. Talking with an estate planning attorney can help you shape your will accordingly. Choosing witnesses to your will is the final piece of the puzzle in ensuring that it’s legally valid.
Tips for Estate Planning
- Consider talking to a financial advisor about will-making, trusts and how to create a financial legacy for your loved ones. Finding a qualified financial advisor doesn’t have to be hard. SmartAsset’s free tool matches you with up to three financial advisors who serve your area, and you can interview your advisor matches at no cost to decide which one is right for you. If you’re ready to find an advisor who can help you achieve your financial goals, get started now.
- A will is just one document you can include in your estate plan. You may opt to establish a living trust to manage assets on behalf of your beneficiaries. You can also set up a durable power of attorney and create an advance healthcare directive. A trust can help you avoid probate while potentially minimizing estate taxes.
Photo credit: ©iStock.com/djedzura, ©iStock.com/SanyaSM, ©iStock.com/Spanic