If you are
contemplating having an estate plan prepared, it's important to know that
there are a few requirements under Minnesota law to legally complete (execute)
the documents. Some of the documents require the presence and signatures of
witnesses.
Wills:
The Will must be signed
by the you, (the testator), or signed in your name by someone in your conscious
presence, plus it must be signed by at least two individuals who have witnessed your signing.
For added protection, your Will should be self-proved. A Will is self-proved when you and the witnesses acknowledge in an affidavit that you signed and executed the Will voluntarily, within the presence of at least two witnesses, that you are at least 18 years old, not under undue influence, and of sound mind. The affidavit must be acknowledged by a Notary Public. Your Will can be made self-proved at the time it is executed or at any time thereafter.
Making your Will self-proved helps establish that it was properly executed, in the event it is contested in court. Thus, witnesses to a self-proved Will are not required to testify in court, as the court automatically deems the self-proved Will to be authentic. This is important, as a proponent of a Will (usually the personal representative) has the burden of proof to show that the Will is valid. If the Will is not self-proved, at least one of the attesting witnesses would be required to provide testimony in court.
Any competent, adult
individual may act as a witness to a Will, and Minnesota law does not require
the witnesses to be "disinterested." However, it is strongly advised
to never allow any interested persons (i.e., beneficiaries) to act as
witnesses, to avoid an appearance of conflict of interest.
Power of Attorney:
Unlike in the case of Wills, executing a Power of Attorney does not require the presence of witnesses, but it does require you (the principal) to sign the document. The execution must also be acknowledged by a Notary Public.
Health Care Directives:
To execute your Health Care Directive, it must be signed by you or someone authorized to sign for you, and either acknowledged by a Notary Public or signed by two adult witnesses.
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If you are thinking about obtaining an estate plan, a qualified Minnesota attorney can help you get started.