Do you know what it takes for your will to be valid? 

For your will to have been validly executed, if you are signing it in Washington, it has to meet the legal requirements for a will under Washington law.  If your will doesn’t meet the legal requirements, then you really don’t have a will.

If your will is not valid, two things can occur.  First, if you had an earlier will, it still controls how your assets are distributed on your death.  Second, if you had never executed a will, your assets will pass to your heirs under the Washington State laws of intestacy (see my November 19, 2017, post for a discussion of intestacy).  In either case, your assets may not be distributed the way you wanted.

The first requirement for a valid will is that to even make a will, you have to be of “sound mind” and at least eighteen years of age.  Sound mind basically means that you understand what it means to make a will, that you know what property you own, and that you know who your relatives are (even if you’re not leaving anything to them).

The second requirement is that your will has to be signed.  You’ll notice that I didn’t say that you have to sign the will.  If you are unable to sign your will, you can direct someone else to sign your name to it while that person is in your presence.  That signature is valid if either (1) you make your mark on the will acknowledging the signature or (2) the person who signed your name signs his or her name to the will along with a statement that he or she signed at your direction.  One thing that is not required is to have your signature on your will notarized.  You can always have your signature notarized if you choose, but it is not required.

The third requirement is that two or more witnesses have to be in your presence when your will is signed, even if someone else is signing it for you.   Also, your witnesses must sign your will in your presence.

While you need at least two witnesses when you sign your will, you shouldn’t have someone witness your will if that person is getting a gift under the will (an “interested witness”).  Having an interested witness won’t invalidate your will, but it can prevent that person from receiving the gift that you want to give them.  No matter what your will says, an interested witness can only get what he or she would get under the laws on intestacy.  A member of your family would likely get at least something, but if the interested witness is someone other than a family member, that person would get nothing.

If you do have an interested witness, that person can still get his or her gift under your will if there are at least two other witnesses to the will.  As I mentioned above, you only need two witnesses for your will to be valid, so you can ignore the interested witness and use the two other witnesses to make the will valid (and if your will is notarized, the notary can be that second witness).

Also, a will from another state is valid in Washington as long as that will was valid under the laws of the state in which it was signed, even if the will doesn’t satisfy the Washington rules for a valid will.

So, to summarize, for your will to be valid: (1) you have to be at least eighteen and of sound mind when you sign it, (2) your will has to be signed by you or in your presence, and (3) two witnesses need to watch you sign your will and need to sign acknowledging they witnessed it while they are still in your presence.