A witness to a will is someone who participates in the validation process of a will. The witness is there to make sure that the testator (person making the will) has the mental capacity required for the will to be legal and valid.
In most cases, all of the witnesses to a will must be present when the testator signs the document and be able to observe the signing. The witnesses also sign the will after the testator.
Witnesses are usually required to be over the age of 18, though Texas allows witnesses who are at least 14.
What is the Role of a Witness for a Will?
Witnesses are present when a will is signed to verify that the testator is the person who made the will and that all of the steps required by the state for a will to be valid were taken. Witnesses sign the will, but are not required to read it.
Witnesses may need to testify to the probate court about the steps taken when the will was executed. The witness may be asked to state:
- That they were in the room when the testator signed the will.
- That the testator appeared to be “of sound mind” when they signed the will.
- That the testator knew they were signing a will and knew what property is being distributed in the will.
Many states allow witnesses to sign a self-proving affidavit. A self-proving affidavit is a notarized document that states that the will was properly executed and replaces the need for witnesses to testify in probate court. Witnesses may still be required to testify if there is a challenge to the validity of the will.
How Many Witnesses are Needed?
The exact witness requirements differ from state to state. Most states require at least two witnesses to sign the will. Some states, like Vermont, require three witnesses. Some states allow holographic wills, which are wills handwritten and usually signed only by the testator.
An attorney will be able to tell you how many witnesses you need before you make your will. It’s important to make sure you have the right number of witnesses so your will is valid.
When Do Witnesses Have to Sign the Will?
Witnesses always sign the will after the testator. The exact timing of when the witnesses must sign the will varies from state to state. In most states the testator signs the will in front of the witnesses and then the witnesses sign immediately after.
Other states allow some time to pass between the testator signing and the witnesses signing, though there is usually a limit on just how much time can pass. For example, New York requires that the witnesses sign the will within 30 days of watching the testator sign.
The witnesses need to have watched the testator sign, or the testator has to tell the witnesses that the document is their valid will and their signature is on it. Typically the witnesses still need to sign in the presence of the testator.
Can I be a Witness if I am also a Beneficiary?
Whether or not a beneficiary can also be a witness depends on state law. In most places witnesses must be “disinterested.” That means they will not inherit or receive any of the property included in the will.
Beneficiaries are usually required to be disinterested to prevent fraud, coercion, or undue influence that might invalidate the will. If a beneficiary is a witness and the will is challenged, the court might declare their gift void. Under those circumstances the rest of the will would still be valid.
The beneficiary’s gift might pass to an alternative beneficiary if one was named. If there was no alternative beneficiary then the gift would become part of the residuary estate and be distributed according to the residuary clause.
Witnesses may also be called to testify about the character or mental state of the testator. There might be a conflict of interest if the witness is also a beneficiary and the validity of the will is being challenged. A witness who is also a beneficiary might be motivated to lie if their gift is at risk.
If the testator has more witnesses than the state requires, then one can be a beneficiary. For example, most states only require two witnesses. If there is a third witness who is also a beneficiary, then their gift will remain in effect because the two disinterested witnesses met the legal requirement for a valid will.
Do I Need a Lawyer if I will be Serving as a Witness to a Will?
Specific witness requirements vary a lot from state to state. If you have any questions about your rights and responsibilities as a witness to a will then you should contact an experienced estate attorney.
If a will that you witnessed has been challenged and you are called to testify, an estate lawyer can represent you during the court proceedings.