Detailed Answer
In Indiana, every will must be in writing, signed by the testator (or by someone in the testator’s presence at their direction), and attested by at least two witnesses who sign in the testator’s presence. See IC 29-1-5-1. Notarization is not required to execute or probate a will in Indiana; it only makes the will “self-proving” under IC 29-1-5-4.
If a will lacks the signatures of two witnesses, Indiana courts generally will not admit it to probate. Without proper execution, the document does not qualify as a valid testamentary will. The court may treat the estate as intestate and distribute assets according to IC 29-1-2.
Hypothetical example: Jane creates a handwritten will but signs it alone and fails to secure two witness signatures. Upon her death, she presents this document for probate. Because the will is not witnessed, the probate court will likely reject it and distribute Jane’s assets under Indiana’s intestacy rules.
In some jurisdictions, courts allow admission under a “harmless error” doctrine when there is clear and convincing evidence of the decedent’s intent. Indiana has not adopted this rule, so the formal requirements are strict.
Next steps if you have an unwitnessed will:
- Review the document with an attorney to confirm the missing formalities.
- Consider filing for probate under intestacy if the decedent has already passed.
- If the testator is still alive and of sound mind, execute a new will with two witnesses present.
- Use a self-proving affidavit to streamline future probate.
Helpful Hints
- Notarization is optional; witnessing is mandatory.
- Indiana requires two witnesses; they cannot be beneficiaries under the will.
- Self-proving wills avoid witness testimony at probate.
- Intestate succession divides assets when no valid will exists.
- Seek legal counsel before drafting or submitting any estate documents.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a qualified attorney in your jurisdiction for advice on your specific situation.