We’ve talked about mistakes when choosing the witnesses to your will (5 Mistakes With DIY Wills and Witnesses), but what actually happens if you can’t track down a witness during the probate process?
Witnesses to a will cannot be found
What does it mean when the witness cannot be found? First, it could be that the witness has passed away. Second, it could mean that they left the state or the country. In todays’ age of technology, it is not that big of a deal if someone moves, but it can still lead to complications in the probate process.
Lastly, sometimes the witness simply won’t cooperate. Sometimes the witness is someone doing a good deed at the time of witnessing but doesn’t want further contact after the person is deceased. For example, maybe the attorney asked a random hospital worker to witness a patient’s will.
What to do when witnesses to will cannot be found
What does a probate attorney do when a witness to a will cannot be found? It starts with internet searches, but if no results turn up then the attorney can hire a private investigator. Private investigators have access to tools and databases that a regular person does not. They can find the witness or proof of the witness’s death. Then the attorney can prove that he or she was diligent in finding contact information or proof of death.
If an attorney was present to supervise the will signing, then ask that attorney to act as a second witness. It’s like having a backup witness in place.
Once you have the witness information, the attorney needs to check if the court will accept only one witness. Unfortunately, even after all the diligent and time-consuming work, the court may still decide that one witness is not enough.
How to avoid missing witnesses
You should always make a self-proving will. This means that the will has a separate affidavit that the witnesses sign saying that they witnessed the will. It’s an extra layer of confirmation, but it is not iron-clad. If the will is contested, then the witnesses can still be called into court.
It is a good idea to have professional witnesses to your will. This does not mean “professionals” such as nurses, doormen, bank tellers, etc. Professional witnesses could be paralegals or other attorneys who do this regularly. First of all, they know what to look for and know how to testify later as a witness to a will. Also, they are generally more available and easier to track down.
Even if your state requires two witnesses for a will, you can have more. That way, if one died away or is hard to find, then you can at least still have the required two. It’s like having a back-up to the back-up.
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