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Can I Get a Witness?

family signing a will{Read in 5 minutes}  In the Trusts & Estates world, there are often times when I am preparing documents that require witnesses. It’s funny — I can put so much time, thought, and effort into drafting these documents, but I cannot ensure that they are properly executed unless I have people who can act as witnesses and observe my client sign them. In the very early days of my private practice, before I had staff, this was a particularly stressful issue. Now that my practice is a little bit larger, it’s a bit easier, but let’s talk about what the documents are and who might be a good witness.

The common documents my clients execute that require witnesses are:

Last Will and Testament

A Will is a document that passes a person’s assets upon their death. To validly execute a Will in New York State requires two witnesses to sign the document along with the Testator (the person who is making the Will). For the purposes of a Will, the witnesses must be disinterested — that means they cannot be beneficiaries under the Will — and ideally not be nominated as Executor. They must also be over the age of 18.

It’s important that the beneficiary not serve as a witness because in some cases a beneficiary who serves as a witness may unintentionally void their own acquest under the Will, leaving them without an inheritance.

The witnesses will sign the Will twice at the end of the document: Once, signing an Attestation Clause and once, signing a Self-Proving Affidavit.

Power of Attorney

A Power of Attorney is a document whereby the Principal appoints an Agent to handle their financial affairs. While generally a Power of Attorney only requires a notary — not witnesses — witnesses are required if the principal is allowing the agent to make gifts of their assets during their lifetime. This is what’s known as signing the Statutory Gifts Rider. In that situation, the document needs to be signed with the formalities of a Will — meaning that you do need two disinterested witnesses to sign the document.

Health Care Proxy

A Health Care Proxy is a document where one appoints someone to make medical decisions for them if they can no longer meaningfully communicate with their doctors. New York State law requires that two disinterested witnesses sign that document. This means that neither the Agent nor any of the Alternate Agents that the principal selects to make these medical decisions can also serve as witnesses to the documents. A disinterested person is necessary.

Living Will

A Living Will is a document whereby someone states their wishes concerning artificial or heroic measures to keep them alive. Since a Living Will does not name Agents, there is no preclusion on who can serve as witnesses — just the usual requirement that they be at least 18 years of age.

Funeral Directive

A Funeral Directive is where a person makes their wishes known concerning the disposition of their remains and appoints an Agent, (and perhaps an Alternate Agent), to make those decisions after they die. Again, here is an article where you are appointing an Agent, so those Agents should not also serve as witnesses to the documents.

As far as who these witnesses should be, it really doesn’t matter. When clients come to see me, I am always a witness along with a member of my staff. However, when people do these documents on their own, it can be anyone they want. Again, so long as the witnesses are at least 18 years of age and are not named as beneficiaries or Agents. For example, it is very common for hospital staff to sign as witnesses to Health Care Proxies or Living Wills. I have seen doormen and superintendents sign as witnesses to Wills. It really doesn’t matter who you pick, so long as you don’t break either of the two guidelines above.

For more information on this topic, please contact me.