Legal Question in Wills and Trusts in Virginia

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