Monday, August 21, 2017

Are Witnesses Required on a Will?

[The following article was written by Attorney  Casey Sauerwine of Marshall, Parker and Weber, and is posted with her permission]

Does a Will Need Witnesses to be Valid? Like many estate planning questions the answer is not as simple as yes or no; but more along the lines of “it depends.” While the law varies from state to state, in Pennsylvania a will usually only has to meet two basic requirements: 1) It must be in writing and 2) it must be signed by the testator (the person whose will it is) at the end[i] thereof. See: 20 PA.C.S.A. §2502.  

 These basic requirements do not include witnesses. Normally as long as you meet the writing and signing requirements witnesses are not required when you sign your will. 

However, there are special circumstances where witnesses are required: when the testator cannot sign his name but rather has to make a mark on the will; or, when the testator cannot sign nor mark on his will and another person has to sign for him. When these circumstances arise it is required that the mark or other individual signing for the testator be done in the presence of two witnesses who sign their names. See, 20 PA.C.S.A. §2502 (2) and (3).

Those are the basic requirements. The bigger question is “Should I have witnesses when I sign my will”? The answer to that question is a definite YES. Here’s why. 

Although witnesses are usually not required at the time the will is signed, they are required in some capacity in order for the will to be probated after the testator dies. (Probate is the legal process of authenticating the will and authorizing someone to administer the estate.) The role of the witnesses is essentially to verify that the instrument being offered is indeed the testator’s will.

If there are no witnesses to the signing of the will, people will need to be located who can verify that the will contains the true signature of the deceased. This can cause unnecessary delay and expense and even result in the inability to probate the will.

In the long run it is definitely better to have witnesses sign your will in the beginning rather than having the executor chase down individuals after your passing.

For Pennsylvania residents, the best way to proceed is to follow the procedure for a “self-proving” will.  Self-proving wills simplify the probate process as they allow the Register of Wills to accept a notarized affidavit from the testator and witnesses as proof the will is the testator’s. This notarized affidavit is placed at the end of the testator’s will and signed by the witnesses at the same time as the testator is signing. If the self-proving will procedure is followed, witnesses will not have to come in to the courthouse to verify the will.

In the end, although you do not usually need two witnesses to sign your will, having a self-proving will can be a huge help for your executor and beneficiaries.

Wills are important and complicated documents. Do yourself and your heirs a favor by avoiding the temptation to “do it yourself” or use a cheap online service. (See our earlier article: Don’t Try This at Home: Do-It-Yourself Wills are Dangerous for more on this topic).

Instead, meet with an experienced elder law attorney who can help you avoid the problems and traps that can cost so much lost time, money and distress for your family after you are gone. If you live in Pennsylvania, the lawyers of Marshall, Parker and Weber will be honored to assist you.

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