Creating a will and confused about the witness and notarization requirements? No worries, we’ve got you covered. A will is a way for people to devise their assets for their beneficiaries after they pass away. Each state lays out requirements for creating a valid will. Most states agree that two witnesses are necessary. States also usually agree that notarization is optional but helpful in proving a will. Let’s get into everything you need to know about witnesses and notarization in your will, including the witness process, self-proving affidavits, and more.
The role of witnesses in executing a will
Generally, most states require witnesses to attest to a will signing. This means at least one or more competent, disinterested adult witnesses must watch the testator (i.e., the will-maker) sign the document, attesting to the authenticity of the testator’s signature. Then, the witness(es) must also sign their name on the document, and some states require additional information, such as the address of the witness. The witnesses should have no personal interest in the will’s contents (i.e., they should not be beneficiaries or heirs under the will) to maintain objectivity and avoid any potential conflicts of interest.
Witnesses are required to help deter fraud and undue influence in the creation of wills. As you can imagine, the execution of a will is filled with opportunities for bad actors to manipulate a testator to give them their estate, whether that is due to an illness, imminent death, or some other factor. Having witnesses there helps ensure that the testator is signing it willingly, is not being coerced, and is of sound mind. Additionally, if there are disputes or challenges to the will’s validity, having properly executed witnesses can help to strengthen the will’s legitimacy and provide evidence in court that the testator was fully aware and competent at the time of signing.
Without proper witnessing to a will, a court can deem a will invalid. This would mean that the deceased’s estate would pass through intestate laws instead of under the terms of their will, which may not be what they wanted.
The witness process (step-by-step)
Although each state has its own specific procedures, the standard witnessing process for a will generally requires the testator and all witnesses to be present when each individual signs. This means the witnesses must see the testator sign, and the testator must see the witnesses sign. Also, the testator should usually sign the will before the witnesses do, so the witnesses can confirm the testator’s signature before signing themselves. This mutual presence confirms that all parties understand the significance of the will and the act of signing.
In most states, witnesses are required to provide their full legal names and addresses on the will. This information is important because, if the will is contested or if further clarification is needed during the probate process, the court may need to contact the witnesses. In some jurisdictions, the witnesses may also be asked to provide their occupation or other identifying details.
What does “disinterested witness” mean?
You will often hear the term “disinterested witness” when referring to the execution of a will. This is the term used to refer to witnesses who do not receive a benefit from the will they are witnessing. This is important because having two people witness the will who are also receiving part or all of the estate from the testator could leave room for fraud or undue influence. For example, let’s say an elderly grandfather with dementia has a will benefitting his two grandsons. His two grandsons coerced him into devising all of the assets for them, and then they also witnessed the document. This creates a conflict because, of course, they are going to validate the will in probate court because they benefit from it!
The best practice is always to have two witnesses who take nothing from the will, such as a neighbor, coworker, or other random, credible person, so that they can vouch for the validity of the will both during the execution and in the event they get called into probate court. Since they have no interest in the will’s outcome, their testimony is less likely to be challenged, providing additional assurance that the will was executed properly.
The role of notarization in executing a will
Typically, notarization is not formally required for a valid will and is different from the witness requirement—it’s the act of including certain language in the will to self-prove the document (stating things like, “I am of sound mind and I understand the effect of this document”) and then having it notarized by a registered notary public. The notary public’s job is to make sure you are who you say you are, confirm your mental capacity, and ensure you actually signed the document. You can do this in addition to having witnesses, but it shouldn’t replace the witness requirement.
Having the will notarized is beneficial because it helps streamline probate by having the document already prove certain elements, such as being of sound mind and confirming identity. It can also reduce the need for witness testimony in probate court if there is any question as to the validity of the document. In other words, it decreases the odds of challenges to the document.
Remember, notarization is not required but is typically recommended in most situations. Without notarization, going through the probate process can potentially be more complex for the beneficiaries and executor.
What is a self-proving affidavit?
A self-proving affidavit is the legal term for the language attached to the will that gets signed by the testator and the notary public. Think of it as a legal tool attached to a will that helps streamline the probate process by confirming the validity of the will without the need for the witnesses to testify in court.
This self-proving affidavit basically says something along the lines of, “I understand what I am signing, I am not under any force to sign this document, and I am of sound mind.” This means that the testator understands the nature of their actions, the consequences of the will, and the assets being disposed of and they are signing the will freely and voluntarily, without any external pressure, force, or undue influence from others. This helps to prevent any future claims of coercion or manipulation in the will’s creation.
Then, both the testator and the notary public will sign off on this. The notary public is responsible for verifying the identity of the testator and ensuring that the will is signed in their presence. The notary also confirms that the testator is mentally competent and signs the will without any coercion. This is a way for a future probate court to confirm that the document is valid in terms of soundness of mind and lack of coercion by having the testator declare these facts in front of a notary public.
States vary in requirements
Keep in mind that the requirements around witnesses and notarization may vary from state to state. For example, some states say that you can actually have an “interested” witness sign your will as long as there is one additional disinterested witness for each “interested” witness. In addition, some states have differing rules on the self-proving affidavit that gets notarized in the will. Some states have specific language to use, and others have recommended language. Because of these varying state laws, it’s crucial to thoroughly research the specific laws in your state regarding will execution, witnesses, and notarization requirements. An estate planning attorney can be an invaluable resource in navigating these legal differences, ensuring that your will is valid, and offering peace of mind that your wishes will be honored after your passing.
Best practices for executing a will
If this all feels like a lot, don’t worry, let’s boil down what the best practices for executing a will are to make it super simple and easy to understand what you need to do:
- Use an attorney if possible: While attorneys are not required for a valid will, it is always recommended to at least consult with an estate planning attorney to ensure your document holds up and is state-compliant. They can also help you navigate complex estate planning issues, such as tax implications, guardianship decisions, and asset distribution, ensuring that your will is both legally sound and aligned with your intentions.
- Choose competent, disinterested witnesses: One of the most important parts of executing a will is ensuring that the witnesses meet the legal requirements. The witnesses should be disinterested, meaning they do not stand to inherit anything from the will. This helps prevent any potential conflicts of interest or undue influence. Choose individuals who are trustworthy, reliable, and likely to outlive you, as they may need to testify in probate court if questions arise about the will’s validity. Ideal candidates include neighbors, long-time friends, or younger family members.
- Follow the correct signing procedure: States often have specific signing procedures, such as ensuring the testator signs first, in the presence of two witnesses, and then the witnesses sign, also in the presence of one another and the testator.
- Consider notarization (Self-proving affidavit): While notarization is not required, it is highly recommended as an added layer of protection for your will. It’s easy and affordable to do, so why not? You can get your will notarized with any registered notary public.
- Keep the original will safe: You should store the will in a safe and secure location, make several copies, and hand them out to your will executor and/or beneficiaries. You should also inform close family and friends where the original will is located.
- Review and update regularly: Wills are usually not one-and-done documents. Life changes, money ebbs and flows, beneficiaries change, etc. Your will may need to be updated frequently, and that’s okay! Just make sure to follow all the requirements laid out by your law for executing a will amendment (a.k.a., codicil).
The bottom line on witnesses and notarization for will execution
It is crucial to execute a will properly. Most states require two witnesses and say that notarization is optional. However, even though notarization is not required, most estate planning attorneys will highly recommend getting the document notarized as a simple way to provide further protection to the document. Failing to get a will witnessed can lead to the will being invalidated and requiring the estate to go through the default laws of the state. This may not be what the testator wanted for their property. As always, speaking with an estate planning attorney to understand the requirements for witnesses and notarization in your state is always recommended. You’ll be happy you planned ahead and protected your loved ones.
Katherine (Kathy) Bakes is the founder and managing attorney of Bakes Law LLC. Her eleven years of practice involves all aspects of family law, including the formation of prenuptial and postnuptial agreements, divorce and legal separations, child custody, child support, and visitation agreements, spousal support and financial settlements. Kathy also engages in the practice of estate planning including the formation of wills, revocable and irrevocable trusts, durable powers of attorney, health care proxies, HIPAA authorizations and living wills. Kathy is a member of both the Connecticut and Massachusetts state bars after receiving her Juris Doctorate degree from New England Law | Boston. Kathy lives in Southport, CT with her husband and toddler. Outside the office, Kathy enjoys playing the piano and teaches music education to students of all ages.
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