Topic: Execution of Estate Planning Documents

ESTATE PLANNING; SIGNING ESTATE PLANNING DOCUMENTS

By Milton Babirak, JD, LLM      |      Babirak Carr, PC     |     Sterling, VA

If you had your estate planning documents prepared by a Virginia lawyer, your lawyer probably discussed with you how to sign those documents. It is very important to follow the proper and accepted procedures for the signing estate planning documents.  The requirements for signing vary, depending on the type of document.

Wills.

For a will, the signing requirements are strict and formal. There must be two witnesses who must be competent disinterested adults. It is best that they are not beneficiaries under the will or related by blood or marriage to you. A qualified notary must notarize your signature. The will includes a self-proving affidavit so that when the will is probated upon your death, the witnesses do not have to appear before a clerk or court to probate the will. Customarily, the lawyer will have the person who is signing the will talk to the witnesses so the witnesses can determine if the signatory is competent, understands what they are signing and is acting of their own free will without undue influence. For security, it is customary to initial and date each page of a will in the margin.

Trusts

For a revocable trust, the requirements are less formal. The client just signs the trust document. Typically, the client’s signature will be notarized. A Virginia revocable trust does not have to be signed before any witnesses but some lawyers have a revocable trust signed before witnesses. There is no harm in this.

Durable Powers.

A durable power of attorney for financial affairs is signed before a notary. There is no requirement that witnesses sign. A Virginia durable power of attorney for healthcare is generally not signed before a notary but this document must be signed before two witnesses. Prior Virginia law used to prohibit certain family members from acting as witnesses for these types of documents. These prior rules were relaxed a few years ago and you should check with your lawyer if you can have a family member sign such a document as a witness.

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