27 Oct 2020
A Last Will and Testament is perhaps the most important part of your estate plan. As you may already know, there are a number of formalities that must be followed for your will to be effective following your death, such as the need to have two witnesses to the will execution. By their signatures on the will, the two witnesses “attest” to the fact that the document being signed is in fact your last will and testament. The witnesses’ job is not necessarily over once they sign the will though.
Following your passing, your will is submitted to a probate court which is tasked with determining the authenticity of it. To do this, it is necessary to locate the two witnesses so they can provide live testimony or swear to an affidavit regarding the signing of the will and the mental capacity of the decedent. Finding those witnesses and having them provide that testimony can prove to be enormously difficult, if not impossible. Often times the witnesses that you may choose for your will signing will have moved away, lost contact, forgotten about witnessing the will execution or even passed away themselves. To avoid the need for witness testimony, the law provides for a “self-proving” will.
A “self-proving” will includes an affidavit signed by both witnesses at the time of the will execution that declares the will signing followed all of the formal requirements, that the testator declared the will to be their last will and testament and that at the time of signing, the testator was of sound mind and understanding. This sworn statement is accepted by the Surrogate’s Court as though it were live testimony taken in person in front of the court.
By having the witnesses sign such an affidavit at the time of the signing of the will, the court can dispense with the need to later find the witnesses at the time of probate. Including this simple affidavit at the will execution can save tremendous effort and expense and will help speed up the probate process. Yet, it is likely that most “Do It Yourself” wills don’t include it. It’s always a good idea to seek professional help when drafting a will and other estate planning documents to be sure your loved ones are taken care of and that your final wishes can be carried out as quickly and efficiently as possible.