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Executing a Will

Posted on March 1st, 2021

Most of us know what a Will is, don’t we? A document that a person (the testator) has created or had someone else create, that explains who they want to get their assets; any accumulation of wealth during their lifetime, either monetary, personal items, land, or even an interest in something such as an outstanding debt or a business.

We know Wills as something that is typed, usually by a lawyer. But they don’t have to be. You can draft your own Will, and it will be effective as long as it is written in your own hand and signed by you; witnessed if necessary – according to the laws of the state in which it was created. This type of will is called a “Holographic Will” and they are accepted by courts in only a few states.

The crux of a Will is quite often in its “execution”; how it was finalized = signed. Except for properly executed Holographic Wills (a topic for another article), Wills must be in writing, signed by the testator, or in the testator’s name by some other person than the testator, in the testator’s conscious presence, and at the direction of the testator; he or she told them to sign it on their behalf. The Will must then be signed by two individuals, each of whom signed within a reasonable time after witnessing the testator sign the Will or the testator’s acknowledgment of having signed the Will and the existence of the Will itself.

An individual generally competent to be a witness may act as a witness. The two individuals signing as witnesses should be “disinterested” witnesses, meaning they are not named as beneficiaries in the Will and do not stand to otherwise gain from the contents of the Will. The signing of a Will by an interested person does not invalidate the will or any provisions of it, but if the witnesses are disinterested, it reduces the reasons for someone to contest a Will.

A Self-proved Will

Many people think a Will has to be notarized to be enforceable or legally acceptable.  That’s not the case. There may be a state that requires Wills to be notarized to be effective, but if there is, I am not aware of it.

A Will whose signing is witnessed by two disinterested individuals in the presence of a notary (an officer of the state authorized to administer oaths under the laws of the state in which execution occurs) and is then signed and stamped by the notary, is considered a self-proving Will. And actually, it can be “attested” after the actual signing by the testator and the witnesses, if they will attest to the officer that the document was signed by the testator and witnessed by them. It is just easier to have the notary there when all the signing takes place, and that is usually the way a signing is managed.

While not required by law – in most if not all states- a self-proved Will adds a level of confidence in the proper execution of a Will.

A Will that is signed by the testator and that signature is witnessed by two competent individuals, will generally be accepted by a court of law as a validly executed Will. There may be other problems with the Will, but execution should not be one of them.

And as always – check the laws of the state in which the Will is being drafted and executed, to be sure the Will and its execution satisfy the laws of the state. What is valid and acceptable in one state, may not be in another. If you have questions about a will, contact a will lawyer in Belgrade, MT, like the ones at Silverman Law Office, PLLC.



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