Switch to ADA Accessible Theme
Close Menu
MacDonald, Lee & Senechalle, Ltd.
Header Search
Home / Newsletters / Estate Planning Newsletter

Estate Planning Newsletter

When Witnesses to Wills are Necessary

A witnessed will is only one of several different types of wills. It is also referred to as a “formal” or “attested” will, and involves the eyewitness participation of other people.

Witnesses

In most states, a witnessed will must be observed by 2 individuals. They must also state that they were present when the person (testator) signed the will, and then recite the way it was signed. This helps safeguard the witnessing (in case at a later date, they are unavailable to verify the testator’s signature on the will).

Who Should Be A Witness

A witness should not be someone who will inherit under the will. Some states disallow this type of witness, and other states limit the inheritance a witness to a will can receive. Witnesses should also be competent to testify about the signing of the will and likely to outlive the testator.

Signature Requirements

A witnessed will must be signed by one of the following:

  • The person making the will (testator)
  • A person the testator has chosen to sign on his/her behalf
  • A conservator chosen by the courts

Marks of the Testator

The testator does not necessarily have to put his/her signature on the will. Other marks will satisfy the signature requirement if the testator is not able to sign the will because he/she is either illiterate or disabled. These types of marks include:

  • Any mark that is near the testator’s name
  • Another person’s signature (with the testator’s direction), in the presence of the testator
  • A conservator’s signature

However, in order for these types of marks to be valid as signatures, they must be witnessed and signed by 2 other persons.

  • The 'As Near As Possible' Rule
    If you create an estate planning document leaving property to a charity, but after your death the transfer cannot occur, the court may apply the cy pres rule. The words “cy pres” are French for “as near.” If your... Read more.
  • Returning Property to its Rightful Owner
    A constructive trust is a remedy imposed by a court when a person has wrongfully attained property in an inappropriate way. The court will undo the transaction and order that title to the property go to the rightful... Read more.
  • Special Needs Trusts Preserve Public Benefits for the Disabled
    Some government statistics estimate that between 15% and 20% of all Americans have some form of disability. It is also estimated that the majority of disabled persons will need to avail themselves of public assistance to help pay the... Read more.
  • Estate Tax Valuation Methods for Securities
    In 2001, Congress passed legislation incrementally increasing the amount exempt from federal estate taxes and completely eliminating estate taxes in the year 2010. However, the legislation contains a “sunset” provision whereby... Read more.
Law Commentary Legal News
Share This Page:
Facebook Twitter LinkedIn
+