What is a Self Proving Affidavit?
A self proving affidavit is a legal document that “proves that you signed your Will.” A self-proving affidavit verifies that your witnesses saw you sign your Last Will and Testament. It is often attached to the back of your Will, and may appear to you to be a part of your Will.
This affidavit is signed by the individuals who witnessed the testator sign the Will and it is their signatures are notarized by a Notary Public. (Many people believe that the testator’s signature should be notarized but it is actually the witness’s signature that is notarized in accordance with EPTL 3-2.1). The self-providing affidavit is a sworn statement by the witnesses attesting to the circumstances of the execution of the Will.
A self proving affidavit should have the date and place where the Will was executed. It should also state that the Testator declared the document to be his, that he asked the witnesses to act as witnesses, that the witness saw the Testator sign the Will in their presence and that they then signed their name to the Will in front of the Testator. It should state that the Testator did not have any physical or mental impairment that would affect his capacity to make a valid Will, was of sound mind, memory, and understanding, able to read, write, and speak in the English language, was under no restraint, was over the age of eighteen (18) years, and in all respects competent to make a Will.
Note that the self-proving affidavit is not the same as the attestation clause that appears immediately following the testator’s signature.
Why Do I Need A Self Proving Affidavit as Part of My Will?
A self proving affidavit is not required in New York, but it is highly recommended. The same way you will go through the process and expense of executing a Will so that your wishes are memorialized so that you control what happens to your money when you pass, you want to make the process of probating your Will as seamless as possible for your Executor.
Having a self proving affidavit may save your loved ones from unnecessary aggravation, delays and expenses down the road when administering your estate. This is because the Courts require “testimony” from your witnesses to establish that your Will was properly executed.
This self proving Affidavit does just that and is sufficient to meet the Court’s requirements without the need for your witnesses to come to Court upon the probating of your Will. The Courts want to know whether the Testator was mentally competent when he executed his Will and that the Testator was not under undue influence or duress when signing the Will. Such statements are found in a self proving affidavit.
Having the self proving affidavit signed contemporaneously with the signing of your Will provides additional assurances to a Judge. When done right away, your witnesses have the details of the execution fresh in their mind. They will know if you were of sound mind when you signed, if anyone was there with you who may have pressured you. Years later, even if you do locate the witnesses, they may not recollect properly the circumstances of the Will execution.
What Happens if I Don’t Have One?
There may be circumstances when you do not have a self proving affidavit. The Will may be executed in a place where there is no ability to get a notary public. In another case, the affidavit may have been executed, but it may have become separated from the rest of the Will and ends up getting lost.
If you do not have a self proving affidavit, does that mean that your Will cannot be probated? No it does not. It just means that your witnesses will need to be located when probating your Will.
They will need to execute a Witness Affidavit, attesting to the circumstances of the Will execution.
Locating the witnesses may be a burdensome task. The witnesses may be employees at your lawyer’s firm, and they may not be working there when your Will is probated. Alternatively, the witnesses can be neighbors who may move away making it hard to track them down. Also, there is also a chance that the witnesses may no longer have mental capacity or may have already passed. Even worse, you may not be able to read their name or address on the Will. In all of these scenarios, you may not be able to get an affidavit from them or it will be timely and costly for your Executor to track them down.
What Happens if a Witness Cannot be Found and there Is No Affidavit?
If you do not have a self proving affidavit and you cannot locate the witnesses, then what? Does that mean that you cannot probate the Will. No, it does not, but your executor will need to take additional steps to have your will probated.
The witnesses who cannot be located cannot come to court to testify to the proper execution of the Will and proper mindset of the Testator. As a result, you will need to find other ways to “prove” the Will.
You will need to prepare affirmations to dispense with the attesting witnesses. If you are trying to dispense with the witness because he/she is dead, you will need to provide the Court with proof of death. If the witness cannot be located, then you will need to show the Court all of the steps that you took to try to find the witness. If the witness is not competent, you will have to show proof the incompetence.
What happens if the Court does not let you dispense with the witnesses? Let’s not think about it. Instead, make sure that the Will you execute has a self proving affidavit.
For more information, please contact Estate Litigation, Guardianship, Probate and Estate Planning attorney Regina Kiperman:
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40 Wall Street
New York, NY 10005
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