Most people are aware that a last will and testament is a way to dictate your final affairs at death, but they are not as informed about the specific purposes. The key functions of a will are to communicate your intentions about who will act as your executor, how to distribute assets to beneficiaries, and what happens as far as guardianship for minor children. You might also be aware of another important point about wills, which is that they must be properly executed according to certain formalities to be valid.
In some states, requirements to create a valid will may be met by executing a self-proving affidavit at the time of signing. This document offers benefits after your passing, making it easier for your surviving loved ones to move forward with the legal process. A wills and estate planning attorney can explain the advantages of a self-proving affidavit and tell you whether it would be appropriate for your situation. You can also read on for some background.
Purpose of a Self-Proving Affidavit for a Will
When someone passes away, their assets, debts, and other financial matters become part of the estate administration process. If that person had a will, the document dictates how the process works. However, the individual named as executor will have to prove the validity of the will to the probate court before it will be accepted. By default, the only way to do this would be to ask the witnesses who signed the will to come into court to testify.
A self-proving affidavit dispenses with the requirement of having witnesses testify in court. The affidavit stands in the place of their testimony as long as the other formalities are met.
Use of Self-Proving Affidavits Varies by Jurisdiction
In some states, it is not necessary to prepare a self-proving affidavit to accompany the will. For instance, under Maryland law, you do not need a separate prove up if you follow formalities for signing and witnessing the will. In DC, there is no option for creating a self-proving affidavit. The will must always be formally established in court.
Formalities for a Will Self-Proving Affidavit
To verify the authenticity of a will, the requirements for a self-proving affidavit are:
- The testator voluntarily signed the will;
- Two witnesses observed the testator sign the will;
- All parties sign the self-proving affidavit within each other’s presence; and,
- The parties supply their signatures before a notary public, who then notarizes the self-proving affidavit.
Note that in some states, such as Florida, it is possible to satisfy the formalities via online notarization. This option is available in limited circumstances, such as where the testator is unable to appear because of a medical condition.
Speak to an Estate Planning Lawyer About Self-Proving Affidavits in Wills
This summary of self-proving affidavits is helpful, but you can see how it is not always possible to use one. For more information about options for your will, please contact Francois Williams Legal. We can schedule a consultation to review your circumstances and explain other estate planning options to serve your goals.