How to witness a will signing?

May 6, 2009 11:25 AM

Does the order matter when a will is witnessed and notarized?

I've written our wills, using legal software. They're printed out, ready to go. The software says they need to be witnessed by three people and notarized. I can get three friends here for dinner to witness the signatures. Or I can get the unsigned will and ourselves to a notary. I can't quite figure out how to get three witnesses and a notary in the same place at the same time. Must the signatures be notarized for the will to be valid? Can our signatures just be witnessed? Or vice versa, can the signatures be notarized and we ask our friends to witness the signatures after the fact? We are in Tennessee.

posted by raisingsand to law & government (8 comments total)

Formalities such as witnessing and notarization can be very important. Unless a Tennessee lawyer can pipe up, I'd strongly recommend just picking up the phone and calling a local lawyer who does wills. It might not cost that much to ask him or her to look over it, to make sure you filled out the form correctly. Also, he might very well have a notary at his office, who could perform the job after he's glanced over it.

In general, depending on the jurisdiction, a witness doesn't actually have to be there to see the actual signature. You just have to show the witness the signature and tell them that this is your signature on the will within a reasonable time afterward. So technically, you might not even have to get all the witnesses together at once, but it depends on the jurisdiction.

So in repeat, it certainly would be most prudent to find a local lawyer who does wills to get the most accurate and correct answer. It'd really suck for your future heirs to realize the will or parts of the will were invalidated for lack of meeting this or that formality!
posted by Atreides at 11:35 AM on May 6

How can the notary certify he saw your witnesses sign, if they aren't there?

You don't need to know the witnesses, so call the notary you want to use, ask them how they handle it. The notary probably works in an office, they should be able to find 3 people easy.
posted by nomisxid at 11:35 AM on May 6 [1 favorite has favorites]

IANAL(yet), but I have taken a class in Wills and Estates. My understanding is that the signature of a notary is useful, if the state allows for what's called a self proving will. For a self proving will, the probate court will presume that the will was validly executed without needing to round up the witnesses. Other than in that circumstance, the execution of a will does not require a notary, only the required number of witnesses(two or three depending on the state, if you've got three go with three to be safe). This was based on a general class in Wills and Estates, however, and if anyone has Tennessee specific information, trust them, not me.
posted by Bulgaroktonos at 11:36 AM on May 6

Better safe than sorry - even though it's a pain, having everyone in the same room prevents the question from ever coming up.

This is not legal advice.
posted by mikewas at 11:38 AM on May 6

The whole point of the notary & witnesses is for them to witness the person signing the document.
posted by jabberjaw at 12:10 PM on May 6

Many banks have a notary on staff. Call yours and see if they do.
posted by notsnot at 12:10 PM on May 6

(Google isn't a good source of legal advice, and you should confirm the following by your own means) According to this and this which I found via Google, you need two witnesses (who should not be beneficiaries of the will) to witness you signing the will, in order for it to be valid.

If you and your witnesses sign in front of a notary public, your will is "self-proving" which means that if the authenticity of the will is disputed, the courts don't have to find your witnesses, which can speed up resolving the dispute. However, if the will's authenticity is unchallenged, having a notary public's signature doesn't matter.

That said, maybe you could go to a bank or someplace, on a Saturday, to do the signing and notarising?
posted by Mike1024 at 2:31 PM on May 6

IANAL but grew up in a family of trusts and estates lawyers (the kind who do wills). In my parents' firm, when things are notarized, the witnesses are usually other attorneys or the secretaries; basically, whoever is on hand at the time.

It is definitely a good idea to have a T&E attorney review your wills.
posted by ocherdraco at 3:02 PM on May 6