If a will is self-proving or self-proved, it means that certain steps have been taken either at the time of execution or thereafter to make it easier to prove the will. Although the process of making a self-proving will varies depending on the state, it usually involves having the witnesses to the will make affidavits that are annexed to the will or made a part of the will. The person making the will, called the testator, is also typically required to acknowledge the will during this process. The self-proving affidavits and the testator's acknowledgement are generally required to be made before an officer authorized to administer oaths in the state in which the documents are executed. See
Wills and Trusts.
State Laws on Self-Proving Wills
Many states have a statutory form for the self-proving affidavit used to make a will self-proved. However, not all states recognize self-proving wills. Some states have different procedures for proving a will. For example, in some states, an attestation clause is part of this process. Because the laws are different from state to state, make sure your will is drafted by a licensed attorney. When drafting a will, an attorney will include various clauses and form language to ensure the will can be upheld as a valid will during probate or administration of the testator's estate. The attorney may include a self-proving affidavit to make it easier to prove the will. If you want to avoid probate, see
Non-Probate Transfers. To find out if your state offers a statutory form of self-proving affidavit, go to
self-proving will forms. Even if your state has a statutory form of self-proving affidavit, you should not attempt to make a will without an attorney. There are many complex issues to consider when drafting a will, such as whether state law has recently changed and your unique circumstances. An attorney may recommend changes to a standard will template based on the needs of your spouse or partner, the heirs that have a right to inherit from your estate, how you want your assets distributed, your health, insurance matters, whether you have a living trust, etc. An attorney can also help ensure your estate planning documents are executed properly in accordance with required will signing formalities. Failure to properly execute the will could result in your property being distributed in a manner you do not intend.
Advantages of Self-Proved Wills
The primary advantage of a self-proving will is that the witnesses to the will are typically not required to provide testimony during
probate. It can be difficult to locate the individuals that witnessed a will, especially if the will was made many years before the testator's death. In some circumstances, it may not be possible to locate a witness to the will or it may be difficult for them to appear. If self-proving affidavits are part of the will or attached thereto, it allows a court to accept the will for probate based on the presumption it was properly executed. There are exceptions, of course. If you live in a state where self-proved wills are recognized, making this type of will is one step you can take to make it easier to close your estate. You may also want to learn about the advantages of using Non-Probate Transfers in your estate plan.
How Does a Self-Proving Affidavit Work?
The reason for making a self-proving will is to make it easier and less expensive to probate the will by avoiding the need to have the witnesses to the will testify when the decedent's estate goes through probate. Put simply, a self-proving affidavit contains the type of information about which the witnesses to the will would have to testify in court to prove the will.
Checklist for Making a Self-Proving Will
The following is a brief overview of the steps that should be taken when making a self-proved will:
1. Review applicable state law requirements for proving a will. If the state where the testator is domiciled recognizes self-proving wills, proceed to the next step. If the state does not recognize self-proving wills, consult an attorney about steps you can take to avoid challenges to the will and related problems during estate administration. For tips, see
finding an attorney.2. Have the will drafted by an attorney. Ask the attorney to include a self-proving affidavit that complies with state law, as well as any required acknowledgment by the testator.3. Include the self-proving affidavits on the will form or attach them to the will, depending on the exact form of the will and state law requirements.4. Follow all execution requirements to make a valid will under applicable state law. This includes such things as having the testator sign the will in the presence of the required number of witnesses and other requirements to make a valid will, which vary depending on the state. See
fatal errors in execution.5. Follow all execution requirements to make a self-proving affidavit under applicable state law. See
This typically involves having the witnesses make the affidavit before an officer authorized to administer oaths in the state, such as a notary, justice of the peace or another type of officer.6. Ask your attorney for instructions on how to properly store the last will and testament. Do not store your will and other
estate planning documents in a location where it will be difficult for your executor to find or access. See Letter of Instruction.
If you are making a will and are concerned about the possibility of a will contest, consult an attorney for information about steps you can take to ensure your last wishes are honored. This is especially important if you disinherited an heir that may be expecting to inherit from your estate. See will and trust disputes.Will contests are often initiated because the testator's estate planning documents were changed and executed at a time when the testator was in declining health. If the testamentary capacity of the testator may be challenged based on dementia or another medical condition, ask your lawyer whether a physician statement on mental competency should be obtained. See Letter Competent Will for more information.Copyright 2020 Pennyborn.com. ALL RIGHTS RESERVED.This article was updated on February 8, 2019.
INFORMATION ON THIS SITE, INCLUDING ARTICLES, ESTATE PLANNING FORMS, AND THE ESTATE PLANNING BLOG, DOES NOT CONSTITUTE LEGAL, FINANCIAL OR TAX ADVICE. Pennyborn.com is not a law firm and is not a substitute for a lawyer. Your use of this site does not create an attorney-client relationship. Information on this site is for educational purposes only and may not be accurate, complete or up to date.
For information about Pennyborn.com and how to advertise on this website Contact Us.