Executing a last will and testament is an important part of establishing a comprehensive estate plan. Ensuring that the will is valid under Utah law is just as important as deciding what provisions should be included in the will.
The number of witnesses required to make a will valid will depend on how the will is written and whether it is intended to be a self-proving will. Having the assistance of an experienced estate planning attorney is strongly advised.
How many witnesses are needed?
The number of people who will be involved in the witnessing process can vary from zero up to three. The following general information addresses three common options.
Witnesses for Self-Proving Wills (Preferred)
For a self-proving will (generally recommended by most estate planning attorneys), two witnesses are required and their signatures must be notarized or otherwise made before an officer authorized to administer oaths under the laws of the State of Utah.
In witnessing a will intended to be self-proving, the notary public can also act as one of the witnesses. (In most circumstances, a notary public cannot witness their own signature – witnessing a will is an exception to this rule.) If the notary public also serves as a witness, then both the notary and the second witness should sign as witnesses; the notary public should then notarize both signatures. If the notary does not serve as a witness, then the two witnesses should sign; the notary then notarizes the signatures of the two witnesses.
Witnesses for Standard Wills
For a standard will to be valid under Utah law, two people must witness the signing of the will (or witness the testator’s acknowledgment of the will and/or signature). Those two people must also sign the will as witnesses.
While the signature of two witnesses can make a will valid, two signatures alone will not make a will self-proving. Without notarization of the witnesses’ signatures, the will is not considered to be self-proving. This can mean that in a subsequent probate action the court may require the witnesses to testify that they did in fact witness the signing of the will. Without this testimony, the will may be held to be invalid and the decedent’s estate may be distributed through the intestate succession process.
The best practice is to have the will both witnessed and notarized so that it is self-proving in the event probate becomes necessary. A will that is not self-proving should only be executed if circumstances make it impossible to have the signatures notarized. Absent a war or other major disaster, such circumstances should be very rare. Notarization is strongly recommended.
Witnesses (None) for Holographic Wills
The Utah Uniform Probate Code makes provisions for a will that may not require any witnesses. This type of will is referred to often as a “holographic” will. Although it may be valid, a holographic will is usually recommended only if circumstances prevent other options.
In order to be considered a valid holographic will, all material portions and provisions of the document must be written in the testator’s own handwriting. The signature must also be executed by the testator.
(For a non-holographic will, Utah law allows the testator’s signature to be executed by another person if it is done in the testator’s conscious presence and at the testator’s direction. Such a procedure can be used if the testator is physically unable to sign a typewritten will, but cannot be used to execute a holographic will.)
The validity or authenticity of a holographic will is more likely to be challenged in the probate process. Use of a self-proving will, if at all possible, is strongly recommended.
Estate Planning Attorneys in Utah
A good attorney can go a long way in making the estate planning process easier, faster, more manageable, and more effective. We work directly with each client to make sure we understand their individual circumstances and their family’s needs. Contact us today to see how we can help you.