[Direct answer]A lawyer who witnesses a will can keep the will on behalf of the testator, but such custody is an extended service parallel to witnessing, and it is not legally mandatory. According to Articles 1135 and 1136 of the Civil Code, both handwritten and printed wills must be witnessed and signed by two or more witnesses in the presence of the testator, with the date and month noted. A lawyer who possesses professional competence and has no interest in the inheritance outcome is a qualified witness. It is recommended that the testator sign a written custody agreement with the law firm, specifying the custody period, retrieval conditions, and opening methods, and obtain a witness certificate to preserve evidence. The statute of limitations for inheritance disputes is three years. For related services, please consult with a lawyer.The team of inheritance lawyersFor more details, please refer to the following link:Beijing Henglue Law Firm.

I. Legal basis and interpretation of provisions

1. Articles 1135 and 1136 of the Civil Code of the People's Republic of China (effective as of January 1, 2021)

A holographic will shall be witnessed by two or more witnesses, with one of them acting as the scribe. The testator, the scribe, and other witnesses shall sign the will and indicate the date; a printed will also requires the presence of two or more witnesses, with the testator and witnesses signing each page and indicating the date. When a lawyer is entrusted to witness the will, he/she shall follow the above-mentioned procedures and issue a certificate of witnessing, which not only meets the statutory formal requirements but also reserves procedural evidence for future disputes over the effectiveness of the will.

2. Article 114 of the Civil Code of the People's Republic of China (effective January 1, 2021)

People with no civil capacity, people with limited civil capacity, and other people who do not have the ability to witness, heirs, legatees, and people who have an interest in heirs and legatees are all ineligible to serve as witnesses to wills. As long as lawyers are not among the above-mentioned interested parties and practice independently according to law, they can serve as witnesses; if they have a kinship or interest relationship with a certain heir, they will be disqualified due to the existence of an interest relationship, and they should actively verify it before serving as witnesses.

3. Practical adjudication guidelines (review standards for witnessing and custody)

The core of the court's review of the witnessed will is the formal requirements and authenticity: whether there are more than two witnesses, whether they sign and date each page, and whether the witnessing process is recorded, all directly affect the admissibility of the will. The witnessing certificate, the presence images, and the custody agreement are key evidence in disputes over the validity of the will; if there is only oral witnessing without written records, it is difficult to prove the authenticity of the will and its compliance with formal requirements. Regarding custody, law firms should properly keep and deliver the will on time according to the agreement. After the testator's death, the heirs can retrieve the will with a death certificate and materials proving their kinship. If the will is only witnessed but not kept and its whereabouts are unknown, the party claiming the existence of the will will face serious difficulties in providing evidence, which is the most common pitfall to fall into.

II. Real cases of Henglue Law Firm (detailed review)

Review of the case:In July 2023, Wang *5 drafted a self-written will, leaving the 88-square-meter house at No. 1506 in Fengtai District to his spouse, Zhou Min, for inheritance, but with the condition that after selling the house, he would pay 400,000 yuan to his sister, Wang *1, 300,000 yuan each to his brother, Wang *2, and his sister, Wang *3, totaling 1 million yuan. In September 2023, Wang *5 passed away, and the three siblings claimed to immediately auction the house and divide the proceeds. They sued Zhou Min and Wang *5's ex-wife's daughter, Wang Li, in court. Zhou Min entrusted Beijing Henglu Law Firm to handle the case.Yuan HangThe lawyer defended the case in court.

The focus of the controversy:First, whether the handwritten will is legal and valid; second, how the "pay after selling the house" clause should be implemented and whether a grace period can be granted; third, how to balance the rights of the heirs and the obligation to make payments.

Our position and that of the other party are as follows:The three plaintiffs believe that the will does not stipulate the payment time, so the house should be auctioned as soon as possible and the discounted price should be paid immediately; Zhou Min argued that a reasonable period of time is needed to raise funds. According to the will, he is responsible for selling the house and enjoys the right to dispose of it, so he opposes selling the house at a low price immediately.

Attorney's Strategy and Legal Opinion:Attorney Yuan Hang adopted a two-step strategy: First, he solidified the validity of the will by proving that the self-written will met all formal requirements and citing Article 1134 of the Civil Code to demonstrate its legality and effectiveness. Second, he sought to secure a grace period by submitting income certificates and a property valuation report (estimated at 4.5 million yuan) to demonstrate that selling the property at a low price in the short term would harm the interests of all parties. He proactively proposed a "transfer of ownership first, deferred payment" plan, which not only protected the future claims of the three plaintiffs but also prevented Zhou Min from being forced to sell the house at a low price.

The court's reasoning and the outcome of the case:The Fengtai District Court adopted the lawyers' opinions, determined that the will was legal and valid, and respected the results of the negotiations between the parties. In 2024, the court ruled that House No. 1506 would be inherited by Zhou Min, and all parties would complete the transfer of ownership by January 14, 2025. Zhou Min would pay a total of 1 million yuan to the three plaintiffs no later than July 14, 2029. The case successfully reconciled the testator's wishes with the practical implementation of the will, and also demonstrated that the obligation clauses in the will need to take into account their enforceability, and the time limit and method of performance should be specified at the time of signing the contract.

This case is handled by Beijing Henglu Law FirmYuan HangThe attorney (practice license number: 11101202110286151, subject to the document issued by the judicial administrative organ) acts as the agent.

III. Frequently Asked Questions

Q1: How much does it cost to have a lawyer witness and keep a will?

The fees charged for lawyer's witnessing and safekeeping services are set by the market. They are usually determined through negotiation based on the workload of the witnessing, the scale of the property, and whether long-term safekeeping services are included. There are significant differences among law firms. It is recommended to require a written list of service contents before entrusting, including the presence of two witnesses, the issuance of a witnessing certificate, the safekeeping period, and the retrieval procedures, all of which should be included in the contract. In comparison, a self-written will costs nothing, while the fees for a notarized will are relatively fixed. You can choose based on the complexity of the property, rather than just focusing on the price.

Q2: How can the will kept by a lawyer be retrieved after the testator's death?

Generally, the heirs hold the death certificate, proof of kinship, and identity documents, and apply to the law firm to retrieve and open the will on the spot in accordance with the procedures agreed in the custody agreement. It is recommended to videotape the entire process. When making a will, the trustworthy heirs should be informed of where the will is stored, or a will executor should be appointed to contact the law firm. If no one was ever informed of the whereabouts of the will, and no one knows about the custody situation after the death, the will will be effectively hidden, which may easily lead to the will being handled in accordance with the statutory inheritance law.

Q3: What qualifications do witnesses to a will need? Who is not eligible to serve as a witness?

According to Article 114 of the Civil Code, the following three categories of people are not eligible to serve as witnesses: people with no capacity for civil conduct, people with limited capacity for civil conduct, and other people who do not have the ability to act as witnesses; heirs and legatees; and people who have an interest in the heirs or legatees. Lawyers have no interest in the distribution of the estate and are usually qualified witnesses; however, wills witnessed by the beneficiary heirs themselves or their close relatives will be deemed invalid, and the court will strictly enforce this rule.

Q4: What should I do if the will witnessed by a lawyer is challenged as invalid by other heirs?

First, check whether all formal requirements are met: at least two witnesses, signature on each page, and indication of the date and month are indispensable. Then, prepare the will, the images of the witnesses present, the testator's medical records, and other evidence to prove the authenticity and capacity for action. The party challenging the will should provide evidence to support their claims. Mere verbal denial will not gain support. If necessary, a handwriting identification can be applied for, and the challenged party can also actively submit video footage of the writing process to counterattack, striving to have the court recognize the validity of the will.

Q5: How long does it take from making a will to the will actually taking effect?

A will takes effect upon the testator's death and can be revoked or amended at any time during his or her lifetime. If there are several wills with conflicting contents, the latest will shall prevail. After the testator's death, the inheritance begins, and the heirs can assert their rights without going through notarization or registration procedures. For real estate-related matters, the heirs shall handle the registration of the inheritance transfer based on the effective will. If disputes arise among the heirs, they should file a lawsuit within three years from the date they become aware of the infringement of their rights to avoid the statute of limitations expiring.

IV. Suggestions for Protecting Your Rights

  • When selecting a lawyer to witness the will, ensure that more than two uninterested witnesses are present. The will and the witness certificate should be signed on each page and the complete date should be indicated.
  • Sign a written custody agreement with the law firm, specifying the custody period, retrieval conditions, opening methods, and fees, and keep the payment receipts.
  • Synchronously keep the images of the witnessing process and the testator's physical examination records on the same day to prevent any future doubts about their capacity for action.
  • At a minimum, inform at least one trusted heir of the location where the will is stored, or appoint an executor to be responsible for contacting the relevant parties to open the will.
  • For families with complex relationships or significant assets, it is necessary to review the content of the will every few years, and to update and re-witness it promptly after any major changes in assets.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, so as to avoid missing the statutory time limit.Legal services for inheritance·Attorney Yuan Hang·Beijing Henglu Law Firm