Identifying and finding witnesses to a will is vital. The witnesses are crucial for establishing the will's authenticity and addressing any arguments that may emerge over the will's validity.
However, there are situations in which witnesses cannot be located, making the probate process more challenging.
In these situations, it is crucial to comprehend the legal ramifications of the absence of witnesses and the choices available to people participating in the probate process.
This article describes the circumstances in which witnesses to a will cannot be located and what can happen in these situations.
Key Takeaways
The court must be supplied with the original, fully executed, and witnessed will to probate a will (the legal procedure of managing a dead person's belongings).
The needed number of witnesses for a will varies by jurisdiction, but most states require a will to be signed by the testator (the person drafting the will) and witnessed by at least two disinterested individuals.
It may be difficult or impossible to locate the witnesses to a will if they have died, relocated, or changed their names.
In most jurisdictions, an unwitnessed will is regarded as an "unexecuted" will and is not recognized as a legal document. Therefore, it will not be subject to probate, and the assets will be dispersed per state legislation.
Any interested person, including beneficiaries specified in an earlier will or anybody who would inherit if the will is deemed invalid, may dispute a will.
Why Would I Need to Locate the Witness to a Will?
There are several reasons why it may be necessary to locate the witnesses to a will.
First, the court must be supplied with the original, fully executed, and witnessed will to probate a will (the legal procedure of managing a dead person's belongings).
Without the witnesses, probating the will may be more challenging and time-consuming.
Additionally, without the witness, the will may not be regarded as legal, and the assets will be divided according to state law instead of the will's instructions. Locating the witness helps ensure that the correct individual gets the assets.
To demonstrate the will's legitimacy, it must be properly performed and observed in the presence of witnesses. The witnesses may certify that the testator signed the will and that, at the time of signing, the testator was of sound mind and not under duress.
To settle disagreements over the will, witnesses may be invited to testify in court if there is a dispute over the will's legitimacy. They can certify that the will was completed correctly.
The absence of a witness or the inability to locate one does not inevitably render the will void. In the event of disagreements or legal processes, it might complicate the process, particularly in states that demand witness signatures on the will.
If the witnesses to a will cannot be discovered, it is usually advisable to contact a lawyer to establish the best action.
Related: Can I Do a Video Will?
How Many Witnesses Are Required for a Will?
The needed number of witnesses for a will varies by jurisdiction.
Most states require a will to be signed by the testator (the person drafting the will) and witnessed by at least two disinterested individuals, that is, people who are neither beneficiaries of the will nor have a personal interest in the testator's death or inheritance.
Notably, several states also recognize self-proving wills, which include an affidavit attesting to the will's legitimacy. This enables the will to be submitted to the court without requiring witnesses to attest to its legitimacy.
In addition to consulting with an attorney, it is always essential to review the rules of the jurisdiction where the will is being executed to ensure that the will fulfills the legal criteria for execution and witnessing in that jurisdiction.
Reasons You Can't Locate the Witness to a Will
There are various instances where it may be impossible to locate the witnesses to a will.
The Witnesses Have Passed Away
If a will's witnesses have died, it will be impossible to trace them. However, as long as the will isn't contested, the fact that a witness has died should not make a difference.
The Witnesses Have Relocated
If the witnesses have relocated, identifying and communicating with them may be difficult, particularly if they have not provided a forwarding address or contact information.
The Witnesses Have Changed Identities
If the witnesses have changed their identities, for example, due to marriage, contacting them using their former names may be difficult.
The Will Is Old
If the will is extremely old, it may be difficult or impossible to locate the witnesses, particularly if they have passed away, relocated, or changed their names or contact information.
The Will Wasn't Submitted to a Court
If the will wasn't submitted to a court, it may not be accessible for public view, and the identities of the witnesses may not be on file.
Other Reasons
If the witnesses cannot be found because they are in jail, a hospital, or under legal guardianship, they may not be reachable.
Related: Do Attorneys Keep Copies of a Will?
How Can I Locate a Witness to a Will?
Typically, the witnesses to a will are named on the document itself. They may be stated at the bottom of the will with their signatures.
If the will is submitted to a court, the witnesses may be included in the court's records.
If you cannot find a copy of the will and do not know who the witnesses are, you may be able to identify them by contacting the person who created the will (such as an attorney) or the executor listed in the will.
It is vital to remember that the witnesses to a will simply attest that the testator was of sound mind and not under coercion or compulsion while signing the document.
They are not responsible for the will's contents or the distribution of the estate's assets; thus, it is not always essential to contact them.
However, if the will is contested in court, they may be called to testify that the will was properly executed and witnessed and that the testator seemed to be of sound mind.
What If There Is No Witness to a Will?
A will that is not witnessed may be deemed void and will not be accepted for probate by a court.
The necessity of witnesses is in place to guarantee that the will is correctly completed and that the testator was of sound mind and not under duress while signing the will.
In most jurisdictions, an unwitnessed will is regarded as an "unexecuted" will and is not recognized as a legal document. Therefore, it will not be subject to probate, and the assets will be dispersed per state legislation.
Whether you find yourself in a scenario where an unwitnessed will has been signed, you should always contact an attorney to see if the will may be regarded as legitimate in your jurisdiction or if you have any alternative options for probating the will and distributing the assets.
Related: When You Should Get an Estate Plan
Can I Contest a Will's Validity?
If you feel that the witnesses to a will were not disinterested persons, meaning that they are beneficiaries of the will or otherwise have a personal interest in the testator's death or inheritance, you may question the will's validity.
Contesting the will's witnesses requires legal steps.
Any interested person, including beneficiaries specified in an earlier will or anybody who would inherit if the will is deemed invalid, may dispute a will.
To dispute the witnesses to a will, you must demonstrate that they did not fulfill the legal criteria for witnessing a will in the jurisdiction where the will was performed.
For instance, if the state requires witnesses to be disinterested, you would have to demonstrate that the identified witnesses were not disinterested.
Contesting a will requires proof and often must be done within a specific time following the testator's death.
Depending on local regulations, the time period, the proof, and the manner in which the dispute is brought up may differ.
If you intend to dispute the will, it is strongly advised that you speak with an attorney specializing in wills, trusts, and estates to assist you through the process and advise you on your prospects of success and the necessary processes.
How Trustworthy Can Help
In instances when witnesses to a will cannot be located, it might be challenging to establish the will's legality in court. To overcome this obstacle, the person presenting the will for probate may be required to prove its legitimacy further.
In the absence of these papers, the court may request additional types of evidence that may assist in confirming the will's validity, such as other documents made at the same time as the will, including power of attorney designations.
To avoid these situations, Trustworthy enables you and your family to save all of your vital estate planning papers in a centralized location.
Trustworthy enables you to save all of your papers in one secure location, allowing you to deliver courtroom evidence most effectively.
Trustworthy is an online service providing legal forms and information. We are not a law firm and do not provide legal advice.
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