What Is a Self-Proving Will?

A will that includes a "self-proving affidavit" can streamline the process of proving a will. This affidavit is a sworn statement made by witnesses who watched the will-maker sign their will. In many parts of the United States, having this affidavit is all that is needed to validate a will; this will preclude the appearance of witnesses in court in order to give testimony about the will's signing.

Now normally speaking, when there is a contract of some kind, a contested signature can be laid to rest when the people who signed the document testify about the matter themselves. Of course, this cannot happen in probate. Hence, there have to be witnesses when a will is signed. When someone passes away, the will goes to a probate court, and then there needs to be two adult witnesses to testify that they saw the will-maker (or "testator") sign it. They would also need to affirm that the will-maker said the will was theirs, that the will-maker did not seem to be under duress, and that they seemed to mentally capable of creating the will. Witnesses can provide this testimony orally in court, or through affidavits, which are sworn statements that have to be signed before a notary public.

This process can become further complicated when witnesses are hard to track down, particularly when a long time has passed since the will was made. Herein lies the benefit of the "self-proving" will. The self-proving affidavit can be made along with the will, providing a built-in affidavit. This way, when the will goes to probate, the witnesses do not have to provide any additional testimony, oral or written. Usually speaking, this is an affidavit that must be signed before a notary public, even though it will not be immediately submitted to a probate court. There are a few places though where the notarized affidavit is not necessary. All that is needed is that the witnesses acknowledge that any dishonesty is perjury, that is, the affidavit is "under penalty of perjury" (also known as lying under oath).

Most self-proving affidavits will be created at the same time as the will, but often courts will still allow this affidavit to be created at a later date. There are some states, however, where self-proving wills are not recognized at all. This is true of the District of Columbia, Maryland, Ohio, and Vermont. On the other hand, there are some states where it is a built-in component of a will to have it be self-proving. That is, the will has a place for witnesses to sign (under penalty of perjury) that as far as they know, the will-maker was at least 18, was mentally competent, and not coerced. This is the case in California, Indiana, and New Hampshire.

In other states, the witnesses of the signing to not have to testify about a will that was written (and signed) entirely in the will-maker's own hand. In order to validate this kind of will, different witnesses are needed. The probate court will require people to give testimony about the will-maker's handwriting, as well as the conditions of the will's being drawn up.

As is evident, matters of probate are rarely straightforward. The process is further complicated by whatever state laws influence a will's creation and validation. Not only will it be of immense benefit to work with an expert in probate law, but you want to the legal assistance of someone familiar with your state's laws. In order to find this expertise, which might help you save your will from being contested, contact an excellent probate lawyer today.