Self-Proving Will

In estate planning, creating a will is fundamental to ensuring that one’s final wishes are carried out efficiently. 

A commonly used instrument in this process is the self-proving will.

It offers several advantages that streamline the probate process and provide peace of mind to testators and their beneficiaries.

Understanding Self-Proving Wills

A self-proving will, also known as a self-authenticating will, is a testamentary document.

It includes an affidavit executed by the testator and witnesses in front of a notary public. 

This affidavit confirms the will’s authenticity and the testator’s mental capacity at its execution. 

The primary purpose of a self-proving will is to simplify and expedite the probate process.

The Legal Formalities

To create a self-proving will, it must adhere to specific legal formalities, which may vary by jurisdiction. 

However, some common requirements include:

Testator’s Signature: The testator needs to sign the will at the end of the document.

Witnesses: Generally, two or more disinterested witnesses must observe the testator’s signature.

Notarization: A notary public must acknowledge the testator’s and witnesses’ signatures, typically by attaching a notarial certificate to the will.

AffidavitThe testator and witnesses need to sign an affidavit.

 It is commonly found at the end of the will or as a separate document, affirming the will’s authenticity.

Example 1: Sarah’s Self-Proving Will

Background Scenario:

Sarah is a 65-year-old retiree who has meticulously planned her estate to ensure a smooth transition of her assets to her two adult children, Emily and Daniel, upon her passing.

She wants to make things as straightforward as possible for her children during the probate process.

Self-Proving Will:

Sarah drafts her will with the assistance of an attorney.

After she signs the will, two of her close friends, Lisa and Mark, serve as witnesses.

In the presence of Sarah and each other, they sign an affidavit attesting to the validity of Sarah’s will and mental capacity.

A notary public notarizes this affidavit.

Scenario Explanation:

When Sarah passes away, Emily and Daniel can present the self-proving will in probate court without the need for Lisa and Mark to appear in person. The court accepts the will as valid because the affidavit, signed by the witnesses and notarized, provides the necessary proof of its authenticity. This simplifies and expedites the probate process for Sarah’s children.

Example 2: Robert’s Self-Proving Will

Background Scenario:

Robert is a 75-year-old widower who has decided to update his will to include his new partner, Carol, and ensure that his adult children from his previous marriage, Michael and Susan, receive their intended inheritances. Robert is aware of potential family disputes after his passing and wants to minimize the likelihood of legal battles.

Self-Proving Will:

Robert consults with an estate planning attorney to create a self-proving will.

He signs the will in the presence of Carol and his longtime friend, John.

Both Carol and John sign an affidavit confirming the validity of the will and Robert’s mental capacity at the time of signing. A notary public notarizes this affidavit.

Scenario Explanation:

When Robert passes away, Michael and Susan may have concerns about the will’s validity due to their father’s new relationship with Carol. However, the self-proving will, with its notarized affidavit, provides strong evidence of Robert’s intent and capacity when creating the will. This makes it less likely that the will’s validity will be contested successfully, and the probate process proceeds more smoothly.

In both examples, the inclusion of a self-proving affidavit and notarization ensures that the wills are more likely to be accepted by the probate court, reducing the potential for disputes and expediting the distribution of assets as per the deceased person’s wishes.