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WHO CAN WITNESS YOUR WILL?

By Lane V. Erickson, Idaho Estate Planning Attorney

As an estate planning attorney, I always recommend that individuals get their written estate planning documents completed. Doing this would include the most important documents such as a durable power of attorney, a living will, a power of attorney for health care, and a last will and testament. All of these documents are notarized so there is no question that they were properly signed and dated by the individual. In addition to this, the last will and testament is also witnessed so that it is self-proving.

A self-proving will is one that is interpreted by the courts to be valid without the need for calling any witnesses to determine whether the signatures actually took place. In other words, the witnesses testified that they saw the individual who signed the will do so. Then the notary enters a notarization indicating that they saw both the testator of the will sign and the witnesses sign as well.

So, the question then becomes who can witness a will in Idaho? This is an easy question to answer. According to Idaho Code § 15-2-505 “any person 18 years of age or older who is generally competent to be a witness can act as a witness to a will.” Additionally, this statute also says that a will or any provision thereof is not invalid because the will is signed by an interested witness.

An interested witness “includes heirs, devisees, children, spouses, creditors, beneficiaries and any others having a property right in or claim against a trust estate or the estate of a decedent . . ..”  Additionally, “it also includes persons having priority for appointment as personal representative, and other fiduciaries representing interested persons. The meaning as it relates to particular persons may vary from time to time and must be determined according to the particular purposes of, and matter involved in, any proceeding.” See, Idaho Code § 15-2-201.

What this all means is that a parent can have their children act as witnesses to their will and that is just fine. It does not invalidate the will just because they are an interested party. Alternatively, the witnesses could be any strangers or any friends, family members, or other individuals that the person creating the will wants to use. Again, the job of the witness is simply to testify that they saw the individual sign the will so it meets all the requirements under Idaho law to be a valid self-proving will.

In our law office we often use legal assistants or secretaries to act as witnesses to the wills we do for our clients. However, if a parent brings children with them when we sign these documents, we often use the children as witnesses instead.

If you have been thinking about or need to get your own estate plan done, we can help. We encourage you to download our Estate Planning Questionnaire and then schedule a free 30-minute consultation. We provide this free consultation to answer all of your questions to help you better understand how an estate plan can help protect you while you’re alive and provide for your family and loved ones after you die. Our goal is to answer all your questions and help you come up with an estate plan that will meet all your individual needs. Please call us today.

ENLIST AN IDAHO ESTATE PLANNING ATTORNEY TO HELP YOU

If you have any questions about your estate or how to simplify your plans for your family and loved ones, we can help.  Call us toll free at 877-232-6101 or 208-232-6101 for a free consultation with Lane Erickson and the Racine Olson team of Estate Planning attorneys in Pocatello. You can also email Lane Erickson directly at lane@racineolson.com. We will answer your questions and will help you solve your Pocatello estate planning problems. I have helped numerous clients create their own customized estate plans and I’m confident that I can help you too.

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