Everyone puts off making a will. So once you’ve actually done the heavy lifting—decided who you want to inherit your property, who you want to serve as your executor, who to name as guardian for your children, and gotten all of these decisions written down in a will—feel free to give yourself a hearty pat on the back.
There’s just one thing: You’re not done yet.
A will, unlike almost any other legal document, must be signed (executed) in a special little ceremony before it is valid. Why? Because unlike other legal documents, if there’s ever a dispute about what it means, the person who wrote it won’t be there to explain what he or she intended. So over the centuries, a ritual has grown up around the signing of a will. It entails a series of safeguards to make sure that the document is genuine, that it says what you want it to say, and that you knew what you were doing.
It’s not hard to sign a will correctly, in a way that will ensure that it will be accepted as valid later. But unfortunately, it’s not uncommon for will-writers—or their lawyers—to make mistakes in the will-signing process, potentially invalidating a will. Here is how to make sure your will is a valid, binding legal document.
1. Proofread the Will
Before you do anything else, sit down and read the document slowly and carefully. Do this before you gather with witnesses to actually sign the will—you can’t pay careful attention if you are distracted or feel hurried. Make sure that you understand everything the document says and that it reflects your wishes. Check the spelling of everyone’s name. If you left property to people in percentages or fractions, add them up to make sure they equal 100. Make sure that all the pages are numbered correctly and that there aren’t any big blank spaces.
If anything needs to be changed, make your corrections and print out a new, clean copy of the document. Never cross out or add any language with a pen, or cover anything with correction fluid. The document should be perfect.
2. Arrange for Witnesses
Every will-signing ceremony needs two witnesses, who will watch you sign your will and then sign it themselves. If you’re signing the will at an attorney’s office, the attorney will probably bring in witnesses—employees of the law firm or someone who works next door, for example. That’s usually fine.
If you’re recruiting your own witnesses, be aware that not just anyone will do. For starters, witnesses must be adults, at least 18 years old. It’s also best to pick witnesses who:
- Don’t inherit anything under the will. This is a requirement in some states, but have disinterested witnesses is always a good idea, so that they don’t have any incentive to say that you were of sound mind if you weren’t.
- Know you. Part of a witness’s job is to state, in writing, that the will-maker appeared to have “testamentary capacity”—that is, was able to make rational decisions about leaving his or her property. Someone who knows you is in a better position to evaluate that, especially if someone might raise questions about your mental state.
- Will be available to testify if necessary. When your will is eventually submitted to the probate court, witnesses may need to give a written statement, or testify in person, that they saw you sign and that you appeared competent.
3. Arrange for a Notary Public
A will doesn’t have to be notarized to be valid. But in most states, you’ll want to make what’s called a “self-proving affidavit” part of your will—and the affidavit must be notarized, which means that you’ll need a notary public at your will-signing ceremony.
If you sign your will in a lawyer’s office, the lawyer will provide a notary public. If you’re arranging this party on your own, you can probably find a notary public at a bank, real estate office, or package-mailing service.
It’s worth it to go to the extra trouble of getting a notarized self-proving affidavit, because it will simplify the process of getting your will admitted to probate after your death. When your witnesses sign the affidavit, they swear that they watched you sign the will and that you appeared to have the mental capacity necessary to make a valid will. After your death, the witnesses won’t have to submit further statements or come to court to testify; the affidavit will do the job.
Learn more about self-proving affidavits, including which states authorize them.
4. Gather Everyone and Explain What’s Going On
Everyone—you, witnesses, notary—should be in the same room for the signing ceremony. If you’re not, it might invalidate the will, depending on how strict your state’s law is. If everyone isn’t already acquainted, they should be introduced to each other.
It’s good to start by explaining why this ritual is important—witnesses have a crucial role and should be aware of it. You or the lawyer should tell the witnesses that you are asking them to witness your will. The witnesses don’t need to know what’s in the will—they just need to know that the document is your will. You or the lawyer should also briefly explain the function of the self-proving affidavit.
State that you have carefully read and understand the will, that it fully reflects your wishes about how you want to leave your property, and that you have made the will freely and without pressure from anyone. It may sound silly to make these formal statements out loud, but do it anyway. It’s all part of the ritual, and it could prevent a court argument later.
5. Initial, Sign, and Date the Will
In the presence of the witnesses, put your initials at the bottom of every page except the last, on which you will put your entire signature. Use blue ink, to make it easy to tell the difference between the original document and photocopies. Sign as you do other important documents, and use the form of your name that the will uses. For example, if your will begins, “I, Susan J. Humphrey, declare that this is my will…” then don’t sign your will “S.J. Humphrey.” Along with your signature, write the date and city where you’re signing.
6. Have the Witnesses Initial and Sign the Will
In your presence, each witness should initial every page, just as you did (and also in blue ink). They also sign the “attestation” at the end of the document, which states that they saw you sign the document and that you appeared to do so of your own free will, and put down their addresses.
7. Sign the Self-Proving Affidavit
Before your witnesses sign the self-proving affidavit, the notary may put them under oath; the notary should know what procedure is required by state law. The notary will then ask the witnesses to sign the self-proving affidavit. You can also ask the notary to ask the witnesses to say, out loud, that they understand and agree to each of the points in the affidavit—for example, that they know this document is your will, that they know they are being asked to act as witnesses to your signature, and so on. How formal you want to be depends on how worried you are that someone might someday challenge this will. The more concerned you are about a potential challenge, the more ritual you want.
If the self-proving affidavit isn’t part of the will itself, you will also sign it, under oath and in the presence of the witnesses and the notary.
When everyone else has signed, the notary signs the affidavit and stamps it with an official notarial stamp (or seal). The notary also notes the event in his or her record book.
8. Store the Will Safely
Now that you’ve gone through the whole will-signing ceremony and have a legally binding document, don’t lose it! Put it in a safe place, and make sure your executor knows where to find it when the time comes.
And give yourself another pat on the back. You’ve taken an important step to take care of your family.