As life goes on, we see more and more of our friends and loved ones suffer from losing someone. At the worst possible time, overcome with sadness, they suddenly find themselves faced with more paperwork and accounting issues than any normal person knows how to deal with. One of the best things any of us can do to spare others this confusion and frustration is to be prepared ahead of time. No matter how much you might not want to think about it, it’s important to prepare your Will and to make sure it’s legally sound. With this in mind, who can witness your will once you’ve made it?
The Rules can Change
The specific laws for executing a Will aren’t the same everywhere in the world — they’re not even the same everywhere in the U.S. For example, in Louisiana, it’s not enough to have witnesses; the signature (and the witnessing) has to be notarized by a public official. In Pennsylvania, on the other hand, the legal requirement for witnesses has been removed entirely, and you can make a legal will without them. Another possible change is the age of “majority” or legal requirement to be an adult, which changes from country to country.
Because the laws can be different in different nations, people who own property in multiple territories may be advised to create multiple wills, one for each country. This can help to make the process quicker and more efficient as well as reducing taxes. There are also “international” wills, drawn up according to a set of rules laid down in a convention in 1973. Wills made according to international rules are guaranteed to be valid in any country which ratified the law. The United States never formally ratified this convention, but precedent to follow the convention has been set in dozens of states in previous cases.
Finally, I’m not a lawyer, so you should definitely consult the local laws to figure out if there are any other exceptions. Still, the following rules will apply to most people in most times and places, so they’re a good place to start.
Witnesses Have to be Adults
Your witnesses must be legally considered adults — usually, this means they must be at least 18 years old. It’s about more than age, however; they have to be “competent” to witness your signature. Kids are out, but so are sight-impaired people and anyone not mentally competent enough to understand what they’re seeing. If their signature is in the “witness” spot, that means that they understood they were witnessing you signing a legal document. They don’t have to know exactly what you were signing, and you definitely don’t have to tell them what the contents of your will are. It’s not likely to happen, but if the validity of the will is called into question, they might be asked to verify that they did indeed see you sign the document their name is on.
They Can’t Be in the Will
You can’t leave anything in your will to someone who’s listed as a witness. This rule makes sure they don’t have a stake in the inheritance that would give them incentive to lie about what they’ve witnessed. The basic rule is that the witnesses can’t “benefit” from the content of the will itself. They also can’t be directly related to anyone benefiting from the will. In other words, if you’re leaving all your money to your friend, that means your friend can’t be a witness to your signature — and it means if he’s married at the time, his wife can’t be your witness either.
They Can’t Be Directly Related to You
Even if they’re not benefiting from the contents of your will, your relatives still shouldn’t be your witnesses. This includes people related to you both by blood and by marriage. They can be related to each other, though: it’s not a problem if your friend and his wife, for example, witness your signature.
They Can Be the Executor
It’s okay if the person “executing” the will is one of the witnesses. The executor of the will is the person who makes sure your wishes are carried out according to the contents of the will. They’re considered to be the manager of all the property in your will up until they distribute said property out to your inheritors.
There Have to Be at Least Two of Them
Sorry, one witness is just not enough for a will to be legal. At least two people must be physically present, at the same time, and watching you sign your own will, then adding their own signatures as the witnesses. More than two is okay.
They Can Get Paid for Their Time
A “trustee” or professional executor can also be a witness, and in this case they are allowed to benefit in one small way from the reading of the will: they’re allowed to charge their normal fee for their services. This is the only real exception to the “witnesses can’t be beneficiaries” rule, although there is one more small loophole …
They Can Become Related to a Beneficiary Later
Okay, this is a little complicated, but the idea is that when you were signing the will, this witness was NOT a beneficiary, or related to a beneficiary; however, after the will was finished and witnessed, they then became related to a beneficiary through marriage. This is considered okay and will not void the will, largely because it happened afterwards. There are one or two similar loopholes relating to changes made after the will was signed, as well as a complicated case known as a “privileged will” which is beyond the scope of this article.
Making your will may not sound like fun, but it’s a very responsible thing to do and can spare your loved ones a lot of legal battles when you’re gone. In addition, it’s not a bad idea to make some plans for your funeral arrangements and where you’ll be buried, and to set aside some funds for those expenses. Also, and this is a big one: make sure your loved ones actually know you’ve done all this and where you saved the paperwork — preferably someplace that will keep the documents safe if there’s a fire or a flood.