Will Formalities

Every state, by law, establishes the number of witnesses required to make a valid will. Most states require two witnesses, while a few states require three witnesses. Generally, witnesses must be age 18 or older, but in some states there are no minimum age requirements.

In addition to age requirements, “interested individuals” are usually unqualified to act as a witness. An “interested individual” is a person who receives any gift or property under the will. For example, a child who receives property under the will of his or her parent would be considered an “interested individual” and therefore disqualified from serving as a witness. After the determination that only qualified witnesses have been identified, the witnesses and the writer of the will (also known as the testator) must sign in front of each other. If two witnesses are required, those witnesses must watch the testator sign the will and watch each other sign as witnesses. Likewise, if three witnesses are required by law, all must be present along with the testator for the signing of the will.

The witnessing requirements should not be confused with notarization. Notarization occurs when a person signs a document in front of a notary. A qualified estate planning attorney can advise you whether a notarization is required or can be beneficial. In some states notarization of the witnesses’ signatures may establish the authenticity of a will. In other states, a “self-proving clause” establishes the authenticity of a will. The self-proving clause should be signed by the testator and the witnesses at the time they are assembled to witness the testator’s signing of the will. If the authenticity of the will is not established by a notary or a self-proving clause, it may be necessary to obtain affidavits from the witnesses when the testator dies in order to prove the will’s authenticity.

The benefit of notarization, or the existence of a self-proving clause, eliminates the need to locate witnesses after the death of the testator. This is because probate courts do not generally accept wills without affidavits from the witnesses. The self-proving language signed by the witnesses and the testator at the time the will was signed establishes the authenticity of the will. When the self-proving language is part of the original will execution, it is not necessary to provide affidavits to establish the authenticity of the will. Wills with a self-proving clause are automatically accepted as valid by the probate court.

To make the process of probating a will less expensive and less time consuming for residents of Auburn, Bluffton, Columbia City, Decatur, or wherever you may live, you should consult with an estate planning lawyer.