In most cases, a will does not need to be notarized to be legally valid. However, it must typically be witnessed by two adults who are present when the testator (the person making the will) signs it. Notarization is optional but can make the probate process smoother by making the will “self-proving.”
What Are the Requirements for a Valid Will?
The requirements for a valid will depend on the laws of your jurisdiction. Here’s a general overview:
United States
Witnesses:
Most states require the will to be signed by the testator in the presence of two adult witnesses.
The witnesses must also sign the will in the presence of the testator.
Witnesses should not be beneficiaries of the will to avoid conflicts of interest.
Notarization:
Not required for validity.
Optional notarization is used to create a self-proving will, which includes affidavits signed by the testator and witnesses under oath before a notary. This avoids the need for witnesses to testify during probate.
United Kingdom
Witnesses:
A will must be signed by the testator and two independent witnesses who are present simultaneously.
Witnesses cannot be beneficiaries or married to beneficiaries, as this could invalidate the gift to them.
Notarization:
Not required in the UK.
The emphasis is on proper witnessing rather than notarization.
A self-proving will is a document where the testator and witnesses sign an affidavit in front of a notary, attesting that:
The testator was of sound mind.
The will was signed voluntarily.
The witnesses were present during the signing.
This simplifies probate because the court accepts the notarized will without requiring testimony from witnesses.
Why Does Witnessing Matter?
Witnessing ensures that the will was created without undue influence or fraud. Witnesses can later testify in court if the will’s validity is challenged.
Does My State or Country Have Additional Requirements?
Local laws may impose additional requirements. For example:
Holographic wills (handwritten, unwitnessed wills) are valid in some U.S. states if written entirely in the testator’s handwriting.
Some states may require notarization for specific types of wills, like those used in emergency situations.
Practical Steps to Ensure a Valid Will
Research your local laws or consult an attorney to confirm the requirements.
Ensure the will is signed in the presence of two adult witnesses.
Consider notarizing the will to make it self-proving, especially in the U.S.
Store the will safely and inform your executor of its location.
FAQs
Can I write my own will without a lawyer?
Yes, you can write your own will without a lawyer, but it must meet your jurisdiction’s legal requirements, including proper witnessing. Consulting a lawyer ensures that the will is legally sound and covers all important details.
What happens if a will is not properly witnessed?
A will that is not properly witnessed may be deemed invalid by the court, and your assets could be distributed according to intestacy laws instead of your wishes.
Is a handwritten will valid?
Handwritten wills (holographic wills) are valid in some U.S. states if they are entirely written and signed by the testator. However, they typically require no witnesses, which can make them more susceptible to challenges.
Can a beneficiary witness a will?
In most jurisdictions, beneficiaries should not witness a will, as it could lead to the invalidation of any gifts left to them. Independent witnesses are recommended.
Does notarizing a will make it valid?
Notarizing a will does not make it valid unless it is also properly witnessed. However, notarization can create a self-proving will, which simplifies probate.
How can I ensure my will is not contested?
To minimize the risk of contestation:
Follow all legal formalities for creating a will.
Use independent witnesses.
Consider including a no-contest clause.
Communicate your intentions to family members in advance.
Where should I store my will?
Store your will in a safe place, such as a fireproof safe or with an attorney. Inform your executor and trusted family members of its location.
Conclusion
While notarization is not typically required, ensuring your will is properly witnessed is critical for its validity. To streamline probate, consider creating a self-proving will. If you’re unsure about the rules in your area, consult an estate planning attorney to avoid complications later.
