States often have minor differences in their laws, so it’s always smart to double-check what’s on the books where you live. Illinois, Indiana and Texas are three states that offer this option. In Vermont, if you and witnesses sign the will before a notary public, the will is considered self-proving without an additional formįagundes notes a legal innovation: the one-step self-proving will, which includes the important legal language in a clause in the will itself, instead of as an attached affidavit. Unless someone wishes to challenge the will’s validity, witnesses don’t need to appear in court as part of the ordinary probate process in these states: In a few other states, a self-proving affidavit never hurts but isn’t necessary. Even if you include a self-proving affidavit, your witnesses will have to appear in court: The following states don’t offer self-proving options for a will. In a few states, there might be little point in taking the effort to get a self-proving affidavit. A self-proving affidavit (which does involve notarizing a will) can simply make the process easier. If your will is written, signed and witnessed in accordance with your state laws, then it’s valid, with or without any extra documentation. The short answer is probably not, although it’s a good idea. Setting up a self-proving affidavit removes any potential uncertainty about whether this really is the correct will. Still, that means leaving things up to an unknown judge’s preference. It’s always possible that the judge might accept the will without taking these measures, especially if no one is contesting the will. You could verify signatures with a handwriting expert.” “You can’t call witnesses into court, but the lawyer who witnessed the will signing could come in and you could cross-examine her. “You’re still trying to get to this question of authenticity,” Fagundes says. If your original witnesses are dead or unreachable when it’s time to validate your will, this puts the probate judge in a more difficult position. Overall, it saves your loved ones stress at a time when they’re grieving.Ī self-proving affidavit also lets you avoid complications if your witnesses turn out to be unavailable. The self-proving affidavit lets your loved ones skip the initial court date to open probate, which saves time and legal fees, and keeps witnesses from having to take time off work or travel to appear in court. They’ve already sworn to the authenticity of the will.” “When you have an affidavit, it says under penalty of perjury that what the witnesses are signing here is true. “Proving a will is a cumbersome process,” Fagundes says. The self-proving affidavit squares off this inconvenience. One way to make sure the will is valid is to have the judge bring both witnesses into court and ask in official legal language whether the signatures are genuine, and whether they believe the testator was mentally coherent and not under duress. And, of course, by the time this is relevant, you won’t be around and can’t confirm it personally. Your witnesses’ job is to confirm that you signed this will and were of sound mind. “In every state, in order for a will to be considered valid by probate court, it needs to be signed by witnesses,” says Dave Fagundes, Baker Botts LLP Professor of Law at the University of Houston Law Center. How Can a Self-Proving Affidavit Help You ‘Prove’ Your Will? So, this is a supplemental document that you can sign in addition to your will-its sole purpose is to make your will easier to “prove” down the line. Note that in most states (except Louisiana) you don’t need a self-proving affidavit in order to make your will legally binding (remember what we said about just printing and signing in front of two witnesses?). Often, the self-proving affidavit is only about a page long. Generally speaking, your self-proving affidavit must be notarized, meaning you and the witnesses sign it in front of a notary public. This part of the process involves a document called a “self-proving affidavit,” and fortunately, it’s easy to add to your will.Ī self-proving affidavit is a document, signed by you and two witnesses, that verifies under oath that your witnesses saw you sign your will and that it’s legally valid. Although this step is (usually) optional, it could make carrying out your will significantly easier on your loved ones down the road.
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