Three Things To Consider When Choosing A Witness To Your Will

14 May 2015
 Categories: , Blog


Most states require you to have two or three witnesses who can sign your will. You must choose all these people with care if you want to avoid future conflicts in your estate plan. For example, a witness should be somebody who:

Is Likely To Survive You

Though it is not a legal requirement, it is advisable to choose a witness who is likely to survive you. This means that your witness should not have a terminal disease or be older than you. Though nobody knows the day of his or her demise, it is reasonable to expect that you (if you are in reasonable health) are likely to outlive a terminally ill person or an older person. Therefore, your parents or grandparents may not make the best witnesses for your will.

This is because if your will is disputed, the witnesses' testimony may be needed to provide clarity on a disputed fact. For example, he or she may be needed to testify that you were not coerced into signing the document.

Isn't a Beneficiary

It's also good to choose a witness whom you have not named as a beneficiary in your will. This is a legal requirement in some states; other jurisdictions even limit the percentage of your estate that you may leave to a witness. Even if your state doesn't have such a rule, it's still a good piece of advice to follow.

If you do choose such a person, then it may be viewed as a conflict of interest. Consider a case where you leave a substantial part of your estate to an heir who is also a witness. Other beneficiaries might argue that the witness influenced you to "reward" him or her with a portion of your estate. It's best to avoid such hiccups by choosing a witness who is not a beneficiary. If he or she must benefit from your estate, then his or her portion should only be a token.

Can Be Physically Present To Sign the Will

Lastly, and this is a legal requirement, your witness must be physically present when appending his or her signature to your will. You can't send it to the witness for him or her to sign it and give it back to you. You can sign your will in the absence of the witness, but he or she must be in your presence when signing it. This requirement rules out people who may not make it to the signing, for example, serving military members.

As you can see, making a will has a number of legal requirements, but there are also some practical issues you have to consider. Do everything in your power to avoid your beneficiaries from fighting over your estate when you are gone.

For more help with estate planning, contact an attorney like Stuart W. Moskowitz, Esq., CPA.