What to Do If Your Will Outlives Its Witnesses . . .

What would happen if you signed a will but nobody came?

That’s not quite exactly what one reader asked, but, forgiving the literary license on my part, it’s close. The reader was worried because the lawyer who drafted his will had died, and he couldn’t find the witnesses who had signed it. Is the will still valid?

In California, in order for a typed, formal will--excluding so-called “holographic” or handwritten wills--to be valid, it must be witnessed by two people. Some lawyers, just to be on the safe side, have three people witness the will (some states require three witnesses), but in California two is the legal minimum.

Must Be Adults

The witnesses must be adults, and they should not be beneficiaries, the people who stand to benefit from the will.

You must sign the will in the presence of all of the witnesses, and then the witnesses will sign what is called an “attestation clause” in your presence.

The state’s fill-in-the-blanks will uses this attestation clause: “Each of us declares under penalty of perjury under the laws of California that the testator (that’s the guy whose will it is) signed this . . . will in our presence, all of us being present at the same time, and we now, at the testator’s request, in the testator’s presence, and in the presence of each other, sign below as witnesses, declaring that the testator appears to be of sound mind and under no duress, fraud or undue influence.”

Who should the witnesses be? Your best bet would be to have someone who knows you personally and plans to be around awhile in case there is ever a dispute about your mental competence at the time you signed the will.

Usual Procedure

What usually happens, however, is a lawyer drafts your will, you drop by to sign it, and the lawyer drags in a few secretaries as the witnesses. They may have just met you, but in most cases, it is not a problem.

But the reader’s question does point out an interesting dilemma. After you die, and your family goes down to court to “probate” the will, will it be necessary to bring the witnesses in to swear in front of the judge that they actually witnessed the signing? And what happens if the witnesses are dead or can’t be found?

Under current law, Los Angeles attorney Andrew S. Garb explains, if the attestation clause is in proper form and signed under penalty of perjury, simply filing the original will in court will suffice, as long as the will is not contested.

“If the witnesses cannot be found or are dead or are mentally incompetent, the law does provide ways to have your will properly admitted,” said Garb, who is vice chair of the probate and trust law section of the L.A. County Bar Assn.

If the attestation clause is not in proper form or has not been signed under penalty of perjury, your heirs may still be able to “prove up” your will. They can do so by finding people to testify who recognize your handwriting and the handwriting of one of the witnesses. Another valid method is to have one person testify as to the authenticity of the testator’s handwriting and someone else, perhaps a secretary or even a lawyer who was present at the time, describe the signing under oath.

Properly Prepared

This assumes that the will conforms to all other legal requirements and is not contested. If all the witnesses who signed your will are long gone, you should check to see that the attestation clause was properly prepared and make sure it was signed under penalty of perjury. You may want to hire a lawyer to review it.

Some older wills may not have provided for the witnesses signatures under penalty of perjury and will not, therefore, be admitted into probate without a new declaration from one of the witnesses. And if no witness is available, then you’ll have to use one of the more costly, time-consuming methods described in the previous paragraph.

If the original witnesses are unavailable, the attestation clause is questionable, and you will want to play it safe. You can sign a new version of your will in front of new witnesses, who should sign a proper and complete attestation clause at the time.

And try to pick witnesses who plan to stay in the neighborhood.

Attorney Jeffrey S. Klein, a member of The Times’ corporate legal staff, cannot answer mail personally but will respond in this column to questions of general interest about the law. Do not telephone. Write to Legal View, You section, The Times, Times Mirror Square, Los Angeles 90053.