There are two important documents that you should consider having as part of your end-of-life plans, a last will and testament and a living will.
Jump ahead to these sections:
- Who Can Witness a Last Will and Testament?
- Who’s Allowed to Witness a Living Will?
- Witness a Will: Frequently Asked Questions
Though both have the same word in it, they come into play at different points in time. When you die, a will is the document that details whom you wish to give your property to upon your death. a living will is a document in which you indicate your wishes with regard to the use of life-sustaining medical treatment if you become irrevocably unconscious. These two documents are a critical part of assuring that your wishes are carried out at times when you are otherwise not able to communicate your wishes.
For these documents to be valid, every state requires that there be witnesses present who can testify that they saw you sign these documents and swear that you stated your intent that these documents were to serve as your will or living will.
Each state has its own rules for who may witness the signing of these documents. However, states share a few rules in common, which are listed below.
Who Can Witness a Last Will and Testament?
The requirements for witnessing a will vary from state to state but generally, all states require witnesses to satisfy three basic rules for the will to be valid:
Have the correct number of witnesses. Although some states have required three witnesses to validate a will, currently all states require only two witnesses to witness the testator’s signature on the will. The testator is the person making the will.
Witness the signatures appropriately. Every state will require one of the following two processes for witnessing the signing of a will. These include:
- The “sight” test. Under the three-pronged sight test, the state may require all three parties (the testator and two witnesses) to see each other sign their respective names on the will. This requires that:
- Each witness see the testator sign
- The testator see each witness sign
- Each witness see the other witness sig
- The “conscious presence” test. Under the conscious presence test, the witnesses do not actually have to see the testator sign the will. Instead, the witnesses could simply be present in the vicinity of the testator (for example, in the same room or at the same table) and simply be conscious of the fact that the testator is signing the will.
Sign and witness the will at the proper time. For states that require the “sight” test, the testator and witnesses must sign the will while they are present together at the same time, so that each one can see the other two sign the will.
However, a testator may want to sign their will when perhaps only one of the two witnesses may be present at that time. Some states allow the testator to sign the will in the presence of only one witness and then, later, have a second witness present to verify the testator’s signature on the will. This second witnessing must occur within a reasonable time of the testator signing the will with the first witness.
The process for witnessing the signatures on a will is fairly simple. As long as you follow these three basic rules for validly witnessing the signing of a will, you should have no concern that the court will invalidate your will for lack of proper witnessing. If you are not sure what rule to follow, an attorney in your state will know what rule is required in your state.
Who can’t witness a last will and testament?
Following the rules for witnessing the signatures on a will is of no use if your witnesses are not qualified to serve in that capacity. Each state has its own rules for who may qualify as a witness and who may not.
Generally, to be qualified to serve as a witness to the signing of a will, you must be “competent” and “disinterested.” You may not serve as a witness to a will-signing if you are not competent or if you have a financial interest in either the distribution of the property in the will or the validity of the will.
Who is a “competent” witness? To be competent generally means to be of sound mind. Just as a testator must be of sound mind when they sign their will, a witness must be of sound mind to serve as a valid witness. This means that when witnessing the signing of a will, a witness must not be:
- Mentally unstable
- Under the influence of medication or drugs
- Unduly influenced to participate
- Under 18 years of age
If any of these circumstances are present for a witness, the court may disqualify the witness. This could invalidate the entire will altogether if this leaves only one witness.
Who is a “disinterested” witness? A disinterested witness is someone who does not stand to gain financially from the will or the invalidity of the will. This normally means that some categories of people are usually disqualified as witnesses, such as:
- Those related to the testator by blood, marriage, or adoption
- Close friends
- Anyone named in the will
People who benefit from the will may be tempted to improperly testify that the will was validly signed when it really wasn’t. Likewise, if a relative of the testator that could benefit from the will being declared invalid (called an “heir”) serves as a witness, the heir may be influenced to incorrectly sign the will so that they might invalidate the will and inherit the testator’s property through intestacy. Intestacy is when there is no will (or the will is invalid) and the court distributes the testator’s property to their legal heirs.
As with other rules, states take different approaches in responding to the issue of an interested witness. For example, some states:
Disqualify the interested witness. For some states, if an interested witness is automatically disqualified, they may not be counted as one of the two witnesses required for a valid will. Without the required number of witnesses, the court likely will invalidate the will.
Qualify the interested witness but reduce their interest. Some states will allow the interested witness to serve as a required witness, but the court will reduce or match what the interested witness receives under the will to the value of what that witness would have received if the will were invalid (or what they would receive in intestacy). In this way, an interested witness has no incentive to falsely claim that the testator validly signed the will when they really didn’t.
Qualify two other disinterested witnesses. Most states will allow an interested witness to serve as a witness and receive their designated interest under the will provided there are two other disinterested witnesses available to witness the testator sign the will.
Notarized wills. Some states now provide for notarized wills, which means that a notary public may notarize the testator’s signature without the need for other witnesses. However, you should always use the required two witnesses unless you are sure that your state recognizes notarized wills as valid. An attorney can advise you on what is required in your state.
Who’s Allowed to Witness a Living Will?
As with a will, almost all states require that a living will be witnessed by two qualified adults who are able to testify that you were of sound mind at the time you signed your living will.
Some states provide for a living will to be notarized instead of requiring two witnesses. Still, other states may require two witnesses and that the living will be notarized.
Who can’t witness a living will?
Most states restrict who may serve as a witness to a living will. Generally, anyone related to you by blood, marriage, or adoption should not serve as a witness to your living will.
Likewise, neither of your witnesses should be someone who stands to inherit from your estate when you die. This may be thought to create a conflict of interest and may be prohibited in many states.
For the same reason, many states also prohibit your attending physician, health care providers, hospital employees, or any agents having authority to act under the living will from being a witness. This is to be sure that no witness has a conflict of interest by having a personal or professional interest in your healthcare.
Witness a Will: Frequently Asked Questions
Many people have common questions about the requirement for having witnesses sign their will. Here are a few of the most common questions and some straightforward answers that may help you to be sure your will is properly witnessed.
Can a stranger be a witness to anyone’s will?
Yes. A stranger may serve as a witness to anyone’s will, as long as they are 18 years of age or older and of sound mind. Be careful when using a complete stranger, however.
If they are needed after your death to testify about the signing of your will, the person administering your estate (called an “executor”) may have to locate the witness. Be sure to obtain their name and contact information before they serve as a required witness.
What happens if a will is not signed by any witnesses?
If a will that requires witnesses to be valid is not signed by any witnesses, the court likely will invalidate the will.
However, some states recognize as valid another type of will (called a holographic will) that does not require any witnesses but must be written entirely in the handwriting of the testator, who must date and sign the will. If your will is invalid for lack of proper witnesses, your will may still be valid as a holographic will if you satisfy these requirements.
Can a will be notarized instead of witnessed?
Yes. There are a few states that may allow a will to be notarized instead of being signed by two witnesses. You must live in a state that authorizes notarized wills before having a notary sign your will with no other witnesses.
Be Sure Your End of Life Wishes Are Carried Out
To ensure that your end-of-life wishes are carried out, you must adhere to your own state’s rules for validly executing your will and living will. As mentioned above with regard to witnesses, most states require two witnesses who must be at least 18 years of age or older; of “sound mind;” not related to you by blood, marriage, or adoption; will not benefit financially from the will; and present when you as the testator and the other witness sign the will.
If you follow these rules as they apply in your state, you can be confident that your end-of-life wishes will be carried out as you desire.