Who Can and Can't Witness a Will?

A will is an important part of your financial plan. When you write a last will and testament, you’re creating a legal document that determines where your assets will go after your death. You can also use a will to name legal guardians for minor children. When making a will, it’s important to follow the rules in your state to ensure the will is valid. One of those rules centers on the requirements for witnesses, so it‘s important to know who can witness your will and who can’t. Witness requirements vary by state, including who can serve as a witness and how the signing must take place.

For more guidance on the intricacies of wills and estate planning, consider enlisting the services of a financial advisor.

Who Can Witness a Will?

When it comes to estate planning, understanding who can witness a will is crucial. Most states require two witnesses for a traditional written will, but the specific requirements depend on state law. Witnesses generally must be competent to serve and must observe or acknowledge the execution of the will as required by the applicable statute.

Choosing witnesses who do not receive anything under the will is generally the safest approach. Some states permit an interested beneficiary to serve as a witness but impose consequences on the gift or additional requirements, while other states have different rules. California, for example, does not automatically invalidate a will because an interested person witnessed it, although a gift to that witness can create a presumption of undue influence under certain circumstances.

The kinds of people who could witness a will for you depending on state law include:

Friends who are not going to receive anything from your estate
Neighbors
Coworkers
Relatives who are not part of your will, such as cousins, aunts, uncles, etc.
Other competent adults who do not have a financial interest in the will

If you hire an attorney to help you draft your will, they may be able to act as a witness if state law permits it and they do not have a disqualifying interest. Likewise, serving as executor does not necessarily prevent someone from witnessing a will, but receiving a gift under the will can create additional issues.

Who Cannot Witness a Will?

Who is prohibited or discouraged from witnessing a will depends on state law. A beneficiary should generally not be used as a witness because doing so can jeopardize the beneficiary’s inheritance or create additional legal questions, even in states where an interested witness does not automatically invalidate the will. For example, New York law can affect a disposition made to an interested witness, while California expressly allows an interested witness but can impose a presumption concerning the gift.

Rules concerning a beneficiary’s spouse or other relatives also vary by state. Being related to a beneficiary does not automatically make someone legally interested in every jurisdiction, so it is inaccurate to assume that all spouses or relatives of beneficiaries are barred from serving.

But married couples can witness a will together if they otherwise satisfy the requirements imposed by their state’s law. For practical purposes, selecting two independent adults who do not benefit from the estate can reduce potential disputes.

Witnesses also must have sufficient capacity to perform the role required by state law. The exact standard and any rules concerning a witness with a disability vary by jurisdiction, so a visual or other disability does not by itself create a universal prohibition on serving as a witness.

Witnesses generally do not need to know how the estate is being distributed. Their role centers on witnessing the execution or acknowledgment of the will and signing it according to state requirements. California, for example, requires witnesses to understand that the instrument they are signing is the testator’s will but does not require them to know its contents.

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Why Wills Need Witnesses

A will is a legal document, but for it to be binding, there are certain requirements to meet. Those requirements vary by state and by the type of will. You must also have testamentary capacity, which generally requires you to understand that you are making a will, the property involved and the people who would ordinarily be expected to inherit from you.

Having someone witness your will matters in case questions come up about its validity later or there is a will contest. For example, if one of your heirs challenges the terms of your will, a witness may be called upon in court to attest that they watched you sign the will or acknowledge it, depending on state requirements, and to describe the circumstances surrounding its execution.

Witnesses provide evidence that the will was executed according to the required formalities. Their signatures can become particularly important during probate if someone challenges the document’s authenticity or execution. If a will agreed with your intent and mental state when you made it, then it becomes harder for someone else to dispute its legality.

How to Choose Witnesses for Your Will

If you’re in the process of drafting a will, it’s important to think about who you’ll ask to witness it. Because witness rules differ by jurisdiction, check your state’s requirements before choosing them. Using independent adults who do not inherit under the will can help avoid problems associated with interested witnesses.

For a traditional witnessed will, two witnesses are required in many states, although requirements and exceptions differ. Generally, the people you choose should be:

Responsible and trustworthy
Legally competent to serve as witnesses under your state’s law
Younger than you if practical, since a surviving witness could be useful if questions about execution arise later
Free of any interest in the will, either directly or indirectly when possible
Willing to testify to the will’s validity if it ever undergoes challenges

When it’s time to sign the will, follow your state’s execution requirements carefully. Some states require both witnesses to be present together for certain parts of the signing, while others have different presence or acknowledgment rules. California, for example, requires at least two witnesses who are present at the same time when they witness the testator’s signing or acknowledgment.

You may also choose to attach a self-proving affidavit where state law permits one. Notarization of the will itself generally does not replace required witnesses unless applicable state law specifically allows another form of execution.

A self-proving affidavit is a statement designed to provide evidence that the will was properly executed, potentially reducing the need for witnesses to testify during probate. Requirements for creating one vary by state. Once the will is signed and deemed valid, store it in a secure but accessible place, such as a safe deposit box. You can also make a copy for your attorney in case the original will is damaged or destroyed. You can also make a copy for your attorney in case the original will is damaged or destroyed.

Can a Will Be Valid Without Witnesses?

Not every valid will follows the standard two-witness format. Some states recognize holographic wills, which are wills written and signed in the testator’s handwriting and can be valid without witnesses when statutory requirements are met. Other states impose different requirements or do not recognize unwitnessed holographic wills at all.

Electronic wills have also changed execution rules in some states. Depending on the jurisdiction, state law can permit electronic signatures, electronic documents or remote witnessing when specific requirements are satisfied. These rules are not uniform nationwide.

Because the validity of an unwitnessed or electronically witnessed will depends heavily on state law, using an alternative to a traditional witnessed will requires particular attention to the rules where the will is executed and where the testator lives.

Bottom Line

Making a will can be a fairly simple task if you don’t have a complicated estate. But even a straightforward will must satisfy the execution requirements that apply in your state. Choosing competent, disinterested witnesses and following the required signing procedure can reduce the risk of problems during probate. Talking with an estate planning attorney can help you shape your will accordingly and comply with your state’s witness and execution rules.

Tips for Estate Planning

Consider talking to a financial advisor about will-making, trusts and how to create a financial legacy for your loved ones. Finding a financial advisor doesn’t have to be hard. SmartAsset’s free tool matches you with vetted financial advisors who serve your area, and you can have a free introductory call with your advisor matches to decide which one you feel is right for you. If you’re ready to find an advisor who can help you achieve your financial goals, get started now.
A will is just one document you can include in your estate plan. You may opt to establish a living trust to manage assets on behalf of your beneficiaries. You can also set up a durable power of attorney and create an advance healthcare directive. A trust can help you avoid probate while potentially minimizing estate taxes.