The Testator, Beneficiary, Executor, and Witness: The major roles involved in writing a legal Will.
There are several key terms that describe people in relation to your legal Will. During the estate planning process, keep these terms in mind.
- Testator: The person creating or leaving a Last Will and Testament.
- Beneficiary: A person who receives a gift as per the Last Will and Testament. This can be a person, a charity, or any other organisation.
- Executor: A person selected by the testator who carries out the Last Will and Testament. Executors will distribute assets, deal with creditors, make tax payments, and perform other services on behalf of the estate. The executor can also be a beneficiary.
- Executors are usually compensated for their services. In most jurisdictions, 5% of the aggregate value of the estate is generally the maximum payment, and executors are commonly awarded 2.5-3.5%.
- The Executor can be a friend or family member, or you can employ the services of a professional; usually a lawyer or department within a bank. Lawyers and solicitors have been known however to charge not only a percentage of the estate, but also an hourly fee which has led to some criticism.
- Witness: A competent person who has reached age of majority that is present with the testator for the signing and dating of the legal Will. Witnesses have to to be disinterested parties; in other words, they can not be a beneficiary, and witnessing a Will can cause a beneficiary to forfeit their gift (disinheritance), or even challenge the validity of the entire Will. In some jurisdictions the spouse of a beneficiary is also disqualified from being a witness. So at ExpatLegalWills.com we generally recommend that the person has absolutely nothing to do with the content of the Will, just to be on the safe side.
- In most jurisdictions, you will need two witnesses.
- An executor can be a witness, but only if they are not a beneficiary.
If you are writing a legal Will to cover assets in Canada the UK or the US, all of these terms apply (with the exception of Quebec in Canada, and Louisiana in the US who use a derivation of French, Napoleonic law). Often, one of the trickiest tasks a testator performs during the creation of his or her legal Will is to find appropriate witnesses, but this process is fairly painless as long as the testator has a reasonable idea of what the search actually entails.
Finding a Witness
Witnesses are commonly friends or coworkers who are not beneficiaries. Witnesses do not have to actually read your Will or be familiar with the contents, and are only verifying the signing and dating of the Will, and their impression that the testator is creating the legal Will of their own volition, not while under duress or while they are not of sound mind. Don’t feel like your witness necessarily has to be a close friend or family member; as long as you feel comfortable approaching that person, and they are of sound mind, legal age, and so on, they can generally witness the signing of your legal Will.
Because it can be awkward including close friends or family who are necessarily excluded from being beneficiaries, you might consider people in the neighbourhood, employees at local businesses, city offices, and so on. If you’re concerned about your witness reading sensitive information while they initial the pages of your Will, it’s common practice to cover the text with a sheet of paper while they initial each page.
There are no residency or citizenship requirements for witnesses. So if you are preparing a Will to cover your UK assets, but are currently residing in South Africa, there is nothing in UK law requiring the witnesses to be British nationals, or residents of the UK.
Self-Proving Affidavit, Affidavit of Execution, and the probate process
Probate is the process of verifying your legal Will and giving the executor the power to gather and distribute your assets. This can require witnesses to testify in person to prove the validity of your Will. If there is a challenge to your legal Will based on a claim that the signing procedure was flawed, then a judge may ask the witnesses to testify under oath that the signing process was indeed conducted correctly.
This can sometimes create problems if it is difficult or impossible to contact the witnesses after your passing, but by signing a Self-Proving Affidavit, Affidavit of Execution, or a similar document, you allow the witnesses to swear under oath pro-actively, at the time of signing.
In essence, an affidavit is a sworn statement or oath that contains a statement that the person signing the affidavit swears is true. Attaching a Self-Proving Affidavit or Affidavit of Execution to your Will allows the witness to swear that the signing procedure was conducted appropriately.
Of course, taking your witnesses to a notary can be inconvenient, and so it is important to understand that the procedure is certainly not a requirement, and it will not make your Last Will and Testament any more “legal”. In fact, in some US states, a Self-Proving Affidavit is not even an option; this is the case in Maryland, Ohio, Vermont, and the District of Columbia. In California and Indiana, your Will is assumed to be self-proving, the Notarizing step is considered unnecessary.
There is actually a good reason for this. The role and responsibility of a Notary Public is not consistent from one jurisdiction to the next. The person is a “taker of oaths” but even within say, Canada, the training and capabilities varies widely by Province. In British Columbia for example, Notaries are required to undertake some legal training. In Ontario, they are simply vetted by the government, and consequently Notaries feature heavily in classified ads offering their services at lower and lower prices.
We are particularly amused by the offer of “take an oath, $20 cash, tax included”. It rather undermines the solemnity of the procedure to make a legal Will.
The Affidavit is a very simple form that should be provided by anybody taking the oath. Generally, and with slight variations in wording depending on jurisdiction, the Affidavit has the attesting witnesses swear an oath that they were present in a specified city or region along with the testator and other witness during the signing and dating of the Will.
At ExpatLegalWills.com we are happy to provide an Affidavit form to anybody who needs one. But it is not a requirement to create your Legal Will.
Turning a piece of paper into a legal Will
If you have used our service at ExpatLegalWills.com to prepare your Will. You will have stepped through our series of questions, and made sure that all appointments have been made and that you have a distribution plan for your assets. Most importantly you will have created a plan in case your first choice plan cannot come into effect. This includes an alternate Executor and backup plan for your beneficiaries. The service will only allow you to download a completed document once all of the questions have been answered and all scenarios have been covered.
You then simply print the document and sign it in the presence of two witnesses who are not beneficiaries in the Will, your two witnesses then sign and you are done. You have your legal Will.