Taking a will through the probate is a complicated process, subject to lots of rules and regulations. Among these are will validating procedures, which involve will witnesses, and have developed into self-proving affidavits and self-proving wills. Here, we’ll briefly describe that development, and how it relates to you.
To establish the validity of a will, the law requires a probate court to determine that the person making the will, at the time of creating it was: of solid mind and had the mental capacity to make a will; and acting freely and without duress.
Since it would be impossible for a judge to be present at every will signing, the law allows the judge to rely on the testimony of two independent witnesses who can testify to the above conditions at the time of signing. In theory, they could then appear in court and offer their testimony to validate the will. This is still impractical, however, since years can pass between will signing and execution, and the amount of traveling potentially involved for a very straightforward, and most often noncontroversial testimony. While arguments about a will’s validity occasionally happen, the witnesses’ testimony is enough to validate the will a vast majority of the time.
To address this impracticality, the legal system developed the self-proving affidavit, which is a signed statement from the witnesses that the required conditions for a valid will were met. The witnesses make this statement under penalty of perjury, as though they were testifying in court. Later, as the will is executed, the probate judge can then freely use the affidavit as a basis to establish the will’s validity. The self-proving affidavit is usually created and signed at the same time as the will, simplifying the entire process.
Some states (like California) have taken this development a step further, and allowed wills to prove their own validity, eliminating the need for a separate affidavit. In these states, the will would have the signed witness statement built in usually on a page immediately after the will creator’s signature.
A will is an essential part of any estate plan. Even those estate plans based on revocable living trusts should have a “pour-over will” as a safety measure to capture anything not in the trust. Doing so avoids possibly sending any assets through intestacy, an unnecessary measure that can be easily avoided. Since your plan will likely involve a will, it makes sense for it to be a self-proving will, so it can be validated as easily and quickly as possible.
As always, if you have any further questions about self-proving affidavits or wills, please reach out to LivingTrustify. We’re happy to help!