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What is a Self-Proving Will?

Estate Planners | Monday, June 27th, 2011

Many wills are “self-proving”, which is simply a term that is used to describe a will that is witnessed by two or more individuals who certify that the will was actually signed by the decedent or testator. This is often accomplished by a self-proving affidavit that is attached to the last will and testament. This type of will helps to shorten the length of time that an estate is in probate, as it a simple matter for the court to determine that the instrument is actually the true last will and testament of the decedent, thus helping to avoid the cost and time associated with located witnesses to swear to the signature during the probate process. This type of will is legal in nearly all states, excluding the District of Columbia, Vermont, Ohio, and Maryland.

Automatic Self-Proving Wills and Notary Publics

In states that do recognize self-proving wills, the will is instantly considered to be self-proving if two people sign as witnesses, at risk of perjuring themselves, that they in fact observed the maker of the will signing the instrument, and that he maker told them that it was, in fact, his will. In some states, including California, a will is considered to be self-proving after it is signed and executed by the testator and the witnesses to the will’s signing. Upon the death of the testator, if the will goes uncontested, probate courts will typically accept it without calling for the testimony of any witnesses or requiring that other evidence be presented. However, in some states, such as in Louisiana, the testator, along with two or more witnesses, must sign an affidavit, giving their sworn statement in the presence of a notary public, that certifies the genuineness of the will and that all formalities in the process of making the will were observed.

Shortens Probate Process

The self-proving will can save the witnesses to the will and the beneficiaries of the will a significant inconvenience as they will not be required to appear in court in order to affirm the validity of the will itself. This will also lend an additional layer of authentication that can sometimes be useful in helping beneficiaries of the will to steer clear of long and expensive probate court processes, and is particularly useful is a witness to the will is difficult to locate, or is deceased. Nonetheless, the self-proving will helps to speed along the probate process so that the decedent’s estate can be dealt with properly, including the distribution of the decedent’s assets and the payment of the decedent’s debts.

Estate Planners and Self-Proving Wills

Because there is no cookie-cutter will that can be valid in all jurisdictions in the U.S., it is invariably a wise move to have an estate planner to prepare a will for you. From state to state, there are different requirements for a self-proving will and particular language that must be in place within the will in order for it to be considered valid. A qualified and well-trained estate planner understands the complexities of creating a legally binding will and is the best person to consult with in order to draft your self-proving will.

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