Signing a Will - Ogborne Law

In a will, as with a lot of legal documents, the required signatures make a big difference. Your signature is the indicative mark declaring to the world when you pass away that the instructions contained in your final document are undoubtedly your “last will and testament.” It is a vital part of a valid will and should be treated serious.

Furthermore, as with a myriad of legal documents, the details are important. Since you are not going to be available to safeguard your own estate following your passing, there are several legal requirements meant to guard against abuse of your signature once you do pass away. This post discusses a few of these requirements common across the US and some possible strategies to circumvent complications.

Signatures and Witnesses

Obviously, the most vital signature required for making a will valid is that of the individual creating the will. This individual is referred to as the “testator”; when they pass away, they are referred to as the “decedent.” Every other signatures are intended to secure the integrity of the testators.

What other signatures are necessitated? Wills are required be signed in front of witnesses. Legally, guaranteeing that the testator has the mental competence to make decisions for themselves is very important. Primarily, the law wants to guarantee that testators that have an inadequate mental capacity are not exploited. Witnesses assist by guaranteeing testators are of “sound mind” when they sign.

Number and Age of Witnesses

Every state requires at a minimum of two witnesses. Having said that, laws change. For instance, before requiring only “two or more credible witnesses,” the state of Vermont used to be the only one that required three. Before signing your will, check your state’s present requirements just to verify.

Witnesses are typically required to watch the testator sign while in each other’s presence. Among others, this helps make sure no witnesses exploit or exert any undue pressure on the testator. Each witness then gives their own signature in the presence of the testator. There are some exceptions to this rule, but it is a lot better to have everyone sign in the same session. This helps circumvent complications in the future.

Furthermore, most states require witnesses to be at a minimum of eighteen years old. Nevertheless, there are exceptions here also. For instance, Texas only requires “trustworthy witnesses that are at a minimum of fourteen years old.” As before, verify with your state’s present age requirements to be clear.

Who Makes a Worthy Witness?

Though states differ as to other witness requirements, common factors are reliability, impartiality, and disinterest. An “interested witness” is one whose portion in the estate produces motivation to lie. This contradicts the aim of having them as your witness.

For instance, heirs (people that inherit on the basis of their descent from the testator) and beneficiaries (individuals alternatively chosen to receive part of the estate) are usually not permitted to act as witnesses since they have an interest in the allocation of the testator’s estate. Generally, loved ones are not ideal witnesses in spite of the fact that they are heirs or beneficiaries. Likewise, a lawyer that devises a will can also not act as a witness.

Holographic Wills

These are NOT encouraged. These wills are handwritten and are binding in about half of the states when there is evidence that the testator wrote by hand the entire document, signed it, dated it, and was capable to do so. Witnesses are not required. These wills tend to arouse suspicion and are vulnerable to legal challenges since their extremely informal nature. Therefore, these wills should most of the time, be avoided.

Your Witnesses Should Sign a Self-Proving Affidavit

Probate is a legal method in which your executor demonstrates to a court that your will is legitimate. In other words, they must demonstrate that the will is truly a reflection of your objectives for your estate following you passing away. (“Probate” also refers to the process of allocating your estate lacking a will.)

Generally, proving the legitimacy of your will to a probate court could necessitate in having your witnesses testify in court. Self-proving affidavits are intended to streamline this process by bypassing this requirement. It is a pledged document, stamped by a notary, that is attached to a will and proclaims it to be genuine. Though this produces an added cost in having to go in front of a notary, this step helps bypass much larger costs throughout probate.

Notify Your Executor

An “executor” is the individual you choose in your will to execute instructions when you pass away (in some states, referred to as “personal representatives.” They need to be chosen carefully for competency and dependability.

Have the original will in a secure location and be sure your executor has knowledge of where it’s located at. When requested, A lot of law offices are going to hold on to the original copy of their clients’ wills for safeguarding. Optionally, you could leave your original will in a safe deposit box at a financial institution. No matter which option you decide on, be sure your executor knows where to locate it.

One general origin of conflict involving wills is the presence of multiple wills. Make sure to date and sign any newer wills legibly. New wills should additionally clearly state that they are meant to replace any preceding wills. This can be accomplished using what’s referred to as a codicil, an additional document attached to your will that can be utilized to nullify earlier wills or modify present ones. When possible, you should burn any old wills (originals and any copies).

Additionally, if you have devised multiple wills over time, it’s even more vital for preserving the original copy of its most recent version. Several copies of a present will, devoid of an original version, raises speculation that you destroyed the original with the goal of revoking it. Equipping your executor with the original copy of your most present will is the best way to bypass these complications.

Residence Requirements

Provided that your will is valid in the state in which it was devised, it is going to generally be valid in the state in which you pass away. On the other hand, when moving to a different state, it is still wise to go over the new state’s laws. Whereas your will could still be valid, you can bypass complications and speed up its administration by reforming it to follow the laws of the new state.

For instance, suppose you devised a valid will in Texas, which allows your witnesses to be as young as fourteen. Suppose you then move to a different state which, like many, necessitates that your witnesses be at a minimum of eighteen years old. In this case, it may be wise to update the will, so it adheres with your new state’s laws. Likewise, if you are married, you should also examine the state’s marital property laws. In all likelihood, you are going to discover that your will is still valid, but if your new state’s laws vary, you should think about revising your will to make sure.

Getting Prepared to Sign

In a lot of cases, you can save time and money by creating your own estate planning documents. Nevertheless, if your estate is complicated, you might have questions about devising a will and guaranteeing its validity. In this situation, you can pursue legal counsel from an experienced estate planning attorney near you.

Source:

Staff, F. L. (2022, May 9). Signing A will. Findlaw. Retrieved October 18, 2022, from https://www.findlaw.com/estate/wills/signing-a-will.html

Attorney Arizona

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