A will is a key component of your estate plan. It is a legal document that will provide an outline as to whom your assets should be distributed following your death. For your will to be deemed valid, you are required to have witnesses be present and sign the document. In New York, you are required to have two witnesses to your will.
Why Do You Need a Witness to Your Will and What Do They Do?
Simply put, if you do not have appropriate witnesses to your will, the document can be deemed invalid, and therefore unenforceable. Because this is the case, you will want to ensure that you understand the process regarding witnesses to your will.
The role of a witness is to verify that the testator, the individual creating the will, signs and executes the will in the witness’ presence. In addition, witnesses must sign the will to verify that the testator has the mental capacity to understand what he or she is signing, and that the will follows any associated laws and regulations of their state of residence.
Who Can Be a Witness to Your Will?
Laws regarding who can be a witness to your will vary from state to state. For example, in New York, witnesses must be at least 18 years of age and cannot be named as a beneficiary in the will. This is the case in several states; beneficiaries often cannot be witnesses to your will.
In general, your witnesses should be individuals who are of sound mind and have no conflicts of interest related to your will.
Who Cannot Be a Witness to Your Will?
As indicated above, in many states, anyone who stands to inherit from your will cannot be a witness. In addition, different states have different age limits for witnesses. Any person who does not possess the mental capacity to understand their role as witness also cannot serve as a witness.
Duties of a Witness to a Will: What You Need to Know
The role of a witness is to verify that the testator signs and executes the will in the witness’ presence.
As for the actual process, the witness needs to watch the testator sign the document before signing the document themselves. This is another aspect of the process that varies depending on the state of the testator’s residence. For example, some states allow for electronic signatures, while others require physical signatures.
In addition to witnesses, there will often be a notary public observing the process. This person will verify the identities of both the testator and the witnesses. The notary public will also verify that the will has been signed voluntarily, not as a result of coercion or any other aspect that would make the will invalid.
The notary public will often administer an oath to both the testator and the witnesses before stamping the document to authenticate it.
What if You Create a Will with No Witnesses Present?
Creating a will with no witnesses present can lead to a variety of issues following your death. After your passing, your will may be contested in probate court. It is also possible that the will can be thrown out and deemed invalid. If this occurs, your assets will be distributed based upon the court’s determination as to who should inherit what; not your wishes.
If you are looking to create or update your will, or need assistance with any other part of the estate planning process, our experienced team of estate planning attorneys can help. Contact us today to learn more about our services.
For more information about various estate planning and elder law topics, find our previous blog posts here.