Are witnesses and notaries required when making an official will?
UPDATED: June 16, 2012
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Whether witnesses or notarization are required to make a will official depends on the state in which the will maker resides. In addition, the number of witnesses required at a will signing also varies from state to state. Most states only require two witnesses to be present when a will maker signs the will in order for the will to be considered valid, while a few states require the presence of at least 3 witnesses.
Generally, witnesses to a will signing must be over the age of 18. However, some states do not specify a minimum age for witnesses. For example, Florida only requires that individuals be competent to act as witnesses to a will signing.
Some states do not allow interested individuals to act as witnesses. An interested individual is a person who receives any gift or property listed in the will. For example, if a parent lists a child as the recipient of property in the will, that child would be considered an interested individual and disqualified from serving as a witness.
Lawyers who assisted in the preparation of the will and notaries are also prohibited from serving as witnesses to a will signing. Depending on the state, a self-prepared will, also known as a holographic will, may be considered valid even if no witnesses were present at the will signing. A holographic will is directly written, signed, and dated by the will maker.
Although it is not necessary to notarize a will for it to be considered effective, it is strongly recommended that wills be notarized to avoid any disputes that may arise over the validity of a will. Even if the required number of witnesses are present during the will signing, if the will is not notarized it will be necessary to obtain affidavits from the witnesses to prove that the will is authentic. Obtaining affidavits can become problematic if a significant amount of time has elapsed between the will signing and the death of the will maker.
Witnesses may be difficult to locate or could have predeceased the will maker. Probate courts may or may not accept the will without affidavits from the witnesses. A will that is signed in the presence of witnesses and notarized is then classified as a self-proving will. It is not necessary to provide affidavits or additional proof to establish the authenticity of a self-proving will because these types of wills are automatically accepted as valid by the probate court.