When you draft a will or are asked to serve as an executor in New Jersey, you probably have questions about the state’s technical rules and regulations. Witnesses serve an important purpose in estate law and ensure that the testator (the individual who creates the will) signed voluntarily and with a complete understanding of what they were doing. Some may wonder whether an executor can also be a witness to a will. Understanding your legal rights and obligations is essential in protecting yourself and your beneficiaries. For more information, continue reading and consult with an Estate Planning attorney today.
Can an Executor Be a Witness to a Will in NJ?
In New Jersey, unless the will is written entirely in the testator’s own handwriting or is being presented to the court under extraordinary circumstances, two witnesses are required. This is outlined in NJ Statutes 3B:3-2, which states that a will must be:
“In writing, signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and at the testator’s direction, and signed by at least two individuals, each of whom signed within a reasonable time after each witnessed either the signing of the will… or the testator’s acknowledgment of that signature or acknowledgment of the will.”
The law does not stipulate that the witnesses cannot also be the executor or even a beneficiary of the will. NJ Statutes 3B:3-8 clearly states that a will is not invalidated by the signing of an interested witness. However, just because an executor can serve as a witness does not necessarily mean that they should.
Should Witnesses Be Disinterested?
Witnesses should generally be disinterested parties, meaning that they do not stand to benefit from the will. Having a disinterested party act as a witness is safer as it reduces the chance that beneficiaries will challenge the will on the grounds of undue influence, fraud, or confusion. It strengthens the perception that the testator acted freely and knowingly, and can generally make the probate process smoother. Even if the executor is not listed as a beneficiary, they are considered an interested party as they have a fiduciary duty to manage the estate and its assets.
While witnesses can overlap with executors or beneficiaries, it is important to understand the possible complications. The will may be easier to challenge, and if a court finds evidence of undue influence, any gifts left to that witness may be reduced or even voided.
If you are both a witness and executor of a will, it is crucial that you understand how your dual role may jeopardize your role or inheritance. An attorney can suggest best practices to mitigate this risk and offer legal advice during the probate process. Contact a knowledgeable legal professional today for more information.
