Save your loved ones time during probate by adding this document to your will.
Including an affidavit with your will can make it self-proved
Self-proved wills can pass through probate faster, since the court doesn’t have to seek witness testimony
To make a self-proving affidavit, you and your witnesses must sign and have it notarized
A self-proving affidavit is a notarized document that helps prove a will’s validity and speed up the probate process. It’s signed by the testator (will writer) and two witnesses, who confirm under oath that they saw the testator sign the will without any undue influence. The affidavit is supplemental and you don’t need one, but it can prevent a court from having to call witnesses to determine the will’s validity.
A valid will must adhere to proper execution according to state laws. For example, a will typically must include the testator’s signature and the signature of two attesting witnesses. When the testator passes away, the will must be proven in a court of law during probate and the witnesses may be called upon to testify. This is not guaranteed to happen during probate and in some states it may only happen if someone contests the will. However, if it does happen, it can greatly inconvenience both the witnesses and the testator’s beneficiaries, since it will delay the probate process.
Adding a self-proving affidavit can prevent the need for witness testimony, so beneficiaries and loved ones can receive their assets faster. To get an affidavit you will need to gather your witnesses and sign in front of a notary public to have the document notarized.
An affidavit is a sworn statement, which just means it is a document that is affirmed under oath as being true. A self-proving affidavit is a fairly short declaration — about a paragraph long — which says the witnesses saw the testator sign the will without any undue influence, and has space for the signatures of everyone involved. This statement must be notarized to make it an official, thus eradicating the need for court verification in the future.
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Without a self-proving affidavit, after someone passes away, their will must be proven in a probate court before any of their assets can be distributed to their heirs. A judge will examine the will to make sure it was executed in accordance with state law . One of the most common requirements of a will is that it is signed by two witnesses. It’s the witnesses’ job to make sure the testator was of sound mind when they signed the will and that they were not coerced.
The court may call on these attesting witnesses (also known as subscribing witnesses) to verify their signatures and get their acknowledgement that they saw the testator voluntarily sign the will. Calling on (deposing) witnesses can be inconvenient and time-consuming, especially if a witness has moved away or is no longer alive. The longer it takes the court to prove the will, the longer the decedent’s family and loved ones must wait to receive any assets and settle the estate.
Read our guide to witnessing a will.
Most states allow for the use of a self-proving affidavit, but in a few places, like Washington D.C., court procedure is required to prove a will (so a self-proving affidavit may not be very helpful in speeding up probate). Additionally, some states may allow for a clause in the will itself to make it self-proving, instead of requiring a separate affidavit (though it wouldn’t hurt if you included one).
In some states, it’s possible to have a holographic will, or handwritten will, which does not need to be witnessed. Not every state allows for this type of will construction, though.
The self-proving affidavit is a fairly brief document and you don’t need legal expertise to create one. The general steps for creating a self-proving affidavit are:
Find your state’s self-proving affidavit form or something similar
Gather your witnesses
Notarize the affidavit
Store the affidavit with your will
If your state allows for the use of a self-proving affidavit it may include a template or example of what it should look like and what type of language it should use directly in their probate laws, which you can find online, usually from the state’s website. You can copy and paste it into a new document.
If you choose to create a will online, the program or service may include an affidavit form.
If you are using the services of an estate planning attorney, they’ll most likely include the affidavit form along with your will.
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Every state has different requirements as to who can witness a will. The witness may need to be a certain age, like the age of the majority, while other states like Texas may allow for witnesses as young as 14. You may also want to avoid choosing a beneficiary as your witness because in some states
Understand the will requirements in your state.
A self-proving affidavit requires notarization. Find a notary public and go there with your witnesses. After you sign, the notary public will stamp the document with an official seal.
Keep the self-proving affidavit with your will in a safe place where your executor can find it. You may also want to tell your executor that you have included the affidavit with your will.
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