In order to make your formal will legally valid, you must sign your will in front of two witnesses. Each witness must also sign the will. It might seem like a lot of empty ceremony, but witnesses actually serve an important purpose; accordingly, there are several requirements surrounding the witnessing process. Here's everything you need to know about witnesses.
The Purpose of the Witnesses to a Will
Witnesses are present to make sure you have the mental capacity and intent to make a will. Because they can observe you and your actions when you are signing your will, they can later testify as to your state of mind if it's ever called into question. The law requires that you be of sound mind when you make a will, and witnesses are essentially a safeguard. In fact, they don't even need to know the will's actual contents.
Witnessing Requirements
While the exact requirements will vary by state, in general, witnesses usually need to meet these two requirements:
- In most states, a witness must be 18 or older
- In many states, a witness may not be a "beneficiary"—meaning someone who is named to receive property under your will
Even if your state allows a beneficiary of your will to act as a witness, it's best practice not to use a beneficiary and to reduce potential conflicts of interest. If there is ever any dispute over your will, the witness might need to testify about the signing of your will after your death, and a disinterested witness will be more credible.
As a practical matter, it's also best to choose witnesses who are likely to be available after you die. This might mean selecting someone in good health, younger than you, and relatively local in geography.
Two Witnesses Required
In all states, two witnesses are required to make a will valid. You can have more than the required amount, and this might be a good option if you’re worried about any of your witnesses not surviving you.
Showing the Witnesses the Will
It's customary, as well as required in many states, for you to physically show your will to the witnesses and inform them that the document is your last will and testament before your witnesses sign the will. Again, the witnesses don't have to read the will or know its contents, and if you wanted to keep your will confidential, you could even cover everything up except the witness statement and signature.
Using a Self-Proving Affidavit
In nearly all states, you can take an additional step that helps your will go through the probate process more smoothly: you can use what's called a "self-proving affidavit." This step is not required, and it has no bearing on the validity of the will itself, but it is very common, as it eliminates the hassle of getting declarations from the witnesses after your death.
To make a self-proving affidavit, you and your witnesses simply sign a statement under oath before a notary public. You can usually find the exact language for the statement in your state’s laws. This statement is then typically attached to your will.
Signing this affidavit is almost always done at the same time that you and your witnesses sign the will, since everyone is already gathered together; however, you can do it at any time after the will is signed.
A Lawyer Can Help
You can make your will yourself using good self-help products like WillMaker. But if you have a complicated situation, if you want to impose controls on your property after your death, or if you just want to have a professional take into account your individual circumstances, see an estate planning lawyer for help.