A self-proving affidavit is a sworn statement that accompanies a Will. In the case of an attested Will, the testator and all witnesses sign it in the presence of a notary.
The self-proving affidavit affirms that the testator properly signed the Will in the presence of two witnesses.
Is it Necessary to Include a Self-Proving Affidavit?
The absence of a self-proving affidavit does not invalidate a Will.
However, having a self-proved Will is beneficial because it eliminates the need for witnesses to appear in a probate proceeding to prove the Will is valid.
Proving up a Will during probate requires witnesses to testify about:
- whether the testator’s signature is genuine;
- whether the testator was of sound mind; and
- whether the testator signed the Will voluntarily and not under duress.
A self-proving affidavit verifies that the Will is authentic without the need for testimony during a probate proceeding. This can be can save time and expense, especially in situations when witnesses die, become incompetent, or move away.
Where Can I Find a Self-Proving Affidavit?
Not every state gives testators the option to add self-proving affidavits to their Wills. The District of Columbia and Ohio do not, as I recently found out while reviewing the Will of a client who had recently moved from Ohio.
There are also a handful of other states in which simply observing the proper formalities when you and your witnesses signed the Will will result in the Will being self-proved. There is no need to add a separate affidavit.
The states that require self-proving affidavits to prove up a Will have statutes that dictate the language the affidavit should include. For example, in Texas, the statute that outlines the requirements of a self-proving affidavit is Section 251.104 of the Texas Estates Code. In North Carolina, the statute is Chapter 31, Article 4A of the North Carolina General Statutes.
If your state gives you the option to add a self-proving affidavit to your Will, do it.
This article was originally published on April 26, 2010, and updated on July 30, 2021.
The post What is a Self-Proving Affidavit? appeared first on Rania Combs Law, PLLC.