Legal Question in Wills and Trusts in Virginia
Who can and cannot be a witness for estate documents
Can a beneficiary of a Will in Virginia be a witness to the Will?
Can a beneficiary of a Living Trust in Virginia be a witness to the Trust? Likewise can a trustee of a Living Trust in Virginia be a witness to the Trust?
Thank you for your advice!
Doug
2 Answers from Attorneys
Re: Who can and cannot be a witness for estate documents
Yes (I think so), yes (I think so) and NO.
Technically, to the best of my knowledge, a
beneficiary CAN be a witness.
However, NO ONE EVER does this in a law firm or
attorney-prepared will or trust. It is far
more advisable NOT to do this. So it just
"isn't done" because it almost always very easy
to grab some random person and have them
witness the signing of the will, and so there
is almost NEVER a good reason to introduce the
slightest question about the witness or the
signature into the equation. It simply is not
worth the risk that someone could question the
legitimacy of the signature or the witness.
No one ever allows a beneficiary to be a witness in a lawyer-written will.
However, bear in mind that there are far more
serious issues about the signing of a will. The
witnesses must be physically present, and able
to see, when the testator signs his or her will,
they must know what the testator is signing (that
it is a will), etc.
Also, there must be a "self proving affidavit"
which must meet very exacting standards.
Otherwise, when the testator dies, the witnesses
must come into court, maybe to a different state
by then, and TESTIFY that they saw the testator
sign the will. What if they are dead? What if
they can't be found?
The self proving affidavit is a substitute for
their live testimony.
However, the risk of the witness being doubted
in the slightest, or challenged, is simply too
dangerous to take the risk of having a beneficiary as the witness. Suppose the beneficiary/witness is dead and his or her children are hoping to inherit in his or her place. Someone else challenges the legitimacy of the self-proving affidavit, and the will is REJECTED from probate. It just isn't worth the risk.
As to the trustee, the trustee is receiving
considerable authority from the creator of the
trust (called the "settlor" just to be bizarre).
It would be a serious conflict for the recipient
of broad authority over the person's property to
be the witness for the document giving him or her
such broad authority over another person's property.
Re: Who can and cannot be a witness for estate documents
Va. Code Sec. 64.1-51 states as follows: No person shall be incompetent as a witness for or against the will soley by reason of an interest in the will or the estate of the testator.
Therefore a named beneficiary in a will can also be a witness to the testator's signing of the document but as Mr. Moseley has already noted, it's generally not a good idea.
Therefore