Witness to a Will

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What is a Witness to a Will?

A witness to a will is a person who participates in the validation of a will document. The witness basically ensures that the testator has the intention and mental capacity to form a legal will. All witnesses must be present at the signing and should be able to observe the testator’s actions during the process. They should also participate if an existing will is to be formally modified.

What is the Role of a Witness for a Will?

The main purpose of a witness is to ensure that the testator is the person who made the will.  Witnesses may not be needed for certain types of wills, such as oral or handwritten wills.  However, many jurisdictions don’t recognize oral or handwritten wills.

Also, the witness may be called on to testify regarding the will’s validity. This can happen if someone contests or challenges the will’s contents.  The witness doesn’t need to know the actual contents of the will. They simply need to be able to verify that the will was created by the person in question.

How Many Witnesses Are Needed?

In most states, a will needs at least two witnesses in order to be legally valid. However, some jurisdictions do require at least three different witnesses. You may wish to consult with an attorney if you have any questions regarding the number of witnesses needed to form a valid will.

When Do Witnesses Have to Sign the Will?

The answer varies greatly between states, although all states require that the witnesses sign the will after the testator signs the will. For example, New York requires that witnesses sign the will within thirty days of the testator signing the will. California, on the other hand, requires that the will be signed within the testator’s lifetime.

Note that in New York, witnesses can sign the will after the testator has passed away, assuming that the testator died before the thirty day ended. In California, witnesses cannot sign a will once the testator has passed away. State law is very different on the issue of whether witnesses can sign a will after the death of the testator.

Can I Be a Witness if I’m Also a Beneficiary?

In most cases, a beneficiary (someone who will be receiving a gift or distribution from the will) cannot also be witness.  This is to prevent various legal violations like fraud, abuse of the legal system, or coercion. A person who will be receiving from the will but is also a witness would be called an "interested witnesses".

Also, a person generally can’t be a witness if there is a possibility that they might have a conflict of interest if called upon to testify about the testator’s character in court. If the witness testifies, the witness’s portion of the estate might be held invalid.

On the other hand, some states do allow a beneficiary to act as a witness to the will. States that permit this typically require that at least two "uninterested" witnesses support the validity of the will However, this type of witness would then be limited only to the amount they would be entitled to if the testator died intestacy (without a will). 

Do I Need a Lawyer if I Will be Serving as a Witness to a Will?

Will witnesses are a very important aspect of the processing of estate property.  If you have any legal questions disputes involving the requirements for witnesses, you should contact an experienced lawyer in your area. Your attorney can help advise you on your duties and rights as a witness. Also, in the event of a legal challenge or conflict, your lawyer can provide you with expert representation during formal court proceedings.  

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Last Modified: 09-12-2013 12:10 PM PDT

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