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Bay Area Estate And Tax Planning Law Firm
Estate Planning
Trust Administration and probate

Does A Will Always Require A Witness?

| Jul 28, 2016 | Uncategorized |

In California, there must be at least two witnesses to a signed will. The stipulations however vary from state to state, for example, Vermont requires three witnesses.

A typical requirement is that witnesses are not named heirs in the will. If a witness is named in the will the gift to him or her may be voided, but the rest of the will remains intact.

Nearly half of all states allow handwritten, unwitnessed wills. These will are called “holographic” wills. One requirement is that they be both entirely written and signed in the testator’s handwriting and in many cases dated.

Because they lack witnesses, holographic wills are easily challenged. In the case of a holographic will, the court must be convinced that the will in its entirety is in the testator’s handwriting and created to serve as a will of the testator.

Each state has its own laws regarding what a valid will must contain. Most states require that:

  • The will clearly state who is writing it.
  • The will explicitly state the wishes of the creator (testator).
  • The will contain at least one substantive clause, such as leaving a specific piece of property to a particular heir.
  • The will appoint a personal representative (executor or executrix).

The executor or executrix is responsible for invoking the terms of the will after the will creator dies.

However, in many states, the court can and will appoint an executor and enforce the will, even when the will names a personal representative.

If you or your family is dealing with an unsigned will or holographic will it may be in your best interest to consult an attorney with experience in wills and will contests.

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