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 in many states.
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.
By making your will self-proved, like by adding a self-proving affidavit, you can prevent the need for witness testimony, so beneficiaries and loved ones can receive their assets faster after you die. To get an affidavit you will need to gather your witnesses and sign in front of a notary public to have the document notarized.
Including an affidavit of witnesses with your will can make it self-proved.
Self-proving wills can pass through probate faster, since the court doesn't need to find the witnesses.
A self-proving affidavit must be signed and notarized in order to work, but they may not be necessary in a few states.
Why should I get a self-proving affidavit?
Without a self-proving affidavit, after someone passes away, their will must be proven valid 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, which commonly requires that a last will and testament is appropriately signed by two disinterested 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.)
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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. 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 probate takes, and the longer the decedent's family and loved ones must wait to receive any assets and settle the estate.
Do all states allow self-proving affidavits?
Most states allow for the use of a self-proving affidavit, but in a few places, like Washington D.C. and Ohio, court procedure is required to prove a will, so a self-proving affidavit may not actually help speed 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 that does not need to be witnessed. Not every state allows for this type of will construction, though.
How to make a self-proving will with an affidavit
The self-proving affidavit is a fairly brief document and you don't need legal expertise to create one. It includes 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.
The general steps for creating a self-proving will are:
Find your state's self-proving affidavit form, acknowledgement, or something similar.
Choose two witnesses and sign the affidavit in front of a notary.
Store the affidavit together with your will, which is now self-proved.
Find a self-proving affidavit form
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.
Gather your witnesses to sign the affidavit
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. The witnesses typical need to be disinterested, too, meaning they don’t stand to benefit from it.
Does an affidavit need to be 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 requires notarization. Your witnesses must sign in the physical presence of the testator and notary public, who will stamp the affidavit with an official seal to make your will self-proved, and getting rid of the need for court verification in the future. You typically must pay a notary fee.
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 to make it self-proved.
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