Witnesses and Notaries
To be valid, a will must be properly executed. Among other things, this means you must sign your will in front of two witnesses (unless you live in Louisiana, in which case you'll need two witnesses and a notary). You and your witnesses must sign and date your will in the same session and in one another's presence.
Witnesses are required because by the time a will is given effect, the person who made it will no longer be around to confirm whether the document being presented for probate is really the will they made, or that the will-maker was of sound mind at the time it was signed. Witnesses to the will's execution, however, can appear in court and provide that confirmation, if needed.
As a legal matter, there is no requirement that witnesses live in the same state as the will-maker in order for their witnessing to be valid.
However, because witnesses may eventually be called into probate to testify about the will, it might make things easier if your witnesses live relatively nearby (and are likely to remain there in the future). Alternatively, you may also be able to avoid making your witnesses appear in court altogether by including a self-proving affidavit with your will, which reduces the chances the witness will have to testify.
Note: not all states recognize the use of self-proving affidavits and we recommend doing research about your own states before creating one.
Who can serve as a witness
There are not many restrictions on who can be a witness, but the rules vary by state. In general, witnesses must be of sound mind. And in most states, witnesses must also be at least 18 years old. Anyone who meets those threshold requirements can qualify to act as a witness.
Many states, however, also have rules regarding the use of "interested witnesses." Generally speaking, an interested witness is a witness who stands to receive property (or otherwise benefit) under the will. The use of interested witnesses typically does not invalidate the will. However, any gifts left to an interested witness could potentially be declared void. Consequently, people who may receive property or other gifts through your will (even as an alternate beneficiary) should be avoided as a witness, as should the spouses of such people.
In some states, a notary can be a witness. But in other locations, the answer is no. If you would like your notary to be your witness we do recommend speaking to an attorney to figure out the exact rules applicable to your location. Additionally, if you have a self-proving affidavit, and one of the witnesses to the will is a notary, then another — different — notary will need to notarize the affidavit.
Where to find someone who can serve as a witness
If you are unable to appoint a witness that is close to you, many people have been able to ask their co-workers, friends, or neighbors. You could also find two employees to act as a witness at the following establishments:
- Local bank
- Post offices
- Shipping stores
- Tax preparation offices
- Local courthouses
Please be sure to call ahead of time to see if there is someone available to assist you with this.
Where to find a notary
Anyone who is a legal notary in your state is qualified to notarize a will. Banks, UPS stores, credit unions, and tax preparation firms are all places where you are likely to be able to find a notary. It's possible there is even one at your own workplace!
A self-proving affidavit is a separate form to your last will and testament, in which you and your witnesses swear under oath that you have signed and witnessed your will in front of a notary public. This eliminates the need to locate the witnesses upon your death to testify about signing the will.
If your state recognizes the use of self-proving affidavits, adding one involves more of a burden for you today, since you will need to sign your will in front of a notary public, but it reduces the burden of proving that your will is really your valid will after you pass away. For example, if you don't have a self-proving affidavit and there is difficulty locating your witnesses to testify about your will's validity, delays and/or complications in the probate process may result. These, in turn, could lead to hardship for beneficiaries of your estate (such as your spouse or children) that may need access to the assets you have left to them in order to cover their day-to-day living expenses. Including a self-proving affidavit can thus speed up the probate process in some cases, and lessen the administrative and financial burden on your loved ones after your passing.
Disclaimer: FreeWill is not a law firm, and does not provide legal advice. While FreeWill strives to ensure that its automated services are complete, they are meant purely as self-help forms. The materials and services are not substitutes for the advice of an attorney.