Self-Proving Affidavit Form

A self-proving affidavit form is necessary for any person who wishes to leave no question as to whether their last will and testament was signed when they were in full mental capacity. This document includes witness accounts given under oath that the testator signed the document and was of sound mind.

Once created, signed, and notarized, the self-proving affidavit is attached to the last will and testament or codicil. This legal instrument makes sure that when the executor of the estate has to oversee the probate process with the court, they have non-disputable proof of the document’s validity.

In most places, state law requires you to create a self-proving affidavit to make it possible for the witnesses not to appear in probate courts. However, in some states like Vermont, you may create a self-proving will with the help of the notary public. In this situation, the will-maker does not need to create an affidavit.

If you need an affidavit sample, you can download one on this site. Need more information on how self-proving affidavit works and how to use this legal instrument? Keep reading this guide to learn more about that.

Self-Proving Affidavit vs. Attestation Clause

A self-proving affidavit and attestation clause serve the same purpose. This purpose is to provide the probate court with sufficient evidence of the fact that a person’s last will and testament was signed voluntarily and of sound mind. However, there are some major differences between the two.

The attestation clause is just that, a section of the will. It includes legal language that makes sure the witnessing of this document is done according to state laws. This includes stating that both witnesses are of legal age and do not have a conflict of interest.

However, an attestation clause only helps the will to meet the legal standards set by a state. The probate court will require the witnesses who attested the document to appear in court and testify.

If the witnesses are unable to make it to the court for any reason, the legal process of probate may be delayed. With a self-proving affidavit, that is not a concern.

This legal instrument requires the witnesses of the signing of the will to state under oath that the will was executed properly and attest to the signing. Signing a self-proving affidavit is done in the presence of a notary public and lying while signing the document is considered perjury.

One of the legal ramifications of giving an oath while signing this document is that the probate court does not need to call upon witnesses to administer the testator’s estate. This makes the process faster and more streamlined.

It’s still possible to challenge this document in court if some loved ones have doubts about the witnesses’ testimony.

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Proving a Will (Probate)

When the testator of the last will dies, the document doesn’t come into effect immediately. It requires some legal action before the estate can be distributed. The first thing that needs to be done is to file the latest will with the probate court.

The court hearing that starts after that and makes sure that the last will meets legal requirements and there is no last will that was signed at a later date. This is why all beneficiaries of the will and the deceased’s heirs are asked to come to the hearing where they have the chance to challenge the will.

Witnesses of the signing of the document are also asked to testify in court to prove the document’s legality. If there is a self-proving affidavit, having witnesses present is not required. This document is given under oath and can act as a substitute for the testimony.

After the probate court proves that the last will meets legal standards, it appoints the executor of the estate. This is mostly done in accordance with the last will itself as normally a testator names a person who can act on their behalf. If that’s not the case, the court will appoint someone on its own, usually a spouse or adult child.

A court may order a person to handle material things of the testator, but ultimately, this requires the executor’s acceptance of the terms of their service. A family member may be safe, but representatives from third parties may have to be financially responsible for their decisions. This is why sometimes executors of estate reject their duties, causing delays to the process.

If the executor of the estate gives their consent to perform estate planning duties, they pay the deceased’s debts, pay their taxes, and distribute the estate according to the last will and testament. When this person is in charge of the estate plan, they have access to the testator’s money and property for the purposes of distributing it. This means that this person has to be reputable in addition to being money-savvy. Failing to pay taxes properly may result in problems down the line.

How to Prepare and Write a Self-Proving Affidavit

Although a self-proving affidavit is not required for a will or codicil to be considered legal, it’s a useful document. It can help streamline the probate process after the testator’s death and leave no questions as to the document’s validity.

Before you sign any documents, make sure to ask your lawyer for legal advice or request a statement from the local authority. This makes sure that your effort is not ruined by not complying with obscure local laws. With that out of the way, here is how you can prepare and write a self-proving will affidavit yourself.

Gather two witnesses

Most local laws in the United States require you to have two witnesses to sign the last will and testament. The first step towards signing an affidavit is to bring the people who witnessed the signing of the will. If the last will is not yet signed, you will need to gather two people to witness the signing and co-sign the affidavit form afterward.

You can’t be a witness if you are:

  • Testator’s spouse
  • A beneficiary of the will
  • A beneficiary’s spouse
  • Under eighteen years of age
  • A notary public who also notarizes the affidavit
  • In any other way interested in the will or testator’s estate

Schedule a meeting with a notary public

A self-proving affidavit is a sworn statement, and that’s why it requires a notary public to sign the document alongside the witnesses. Find a good notary public in your area and schedule a meeting with them.

Make sure that both witnesses can show up on time. If the last will is already signed, you need to bring the document with you for notarizing the self-proving affidavit.

Note that notary public and attorney are not the same thing. Attorneys represent you before the courts, and notaries take oaths. Attorney-client privilege also doesn’t extend to your communication with the notary public.

Even though your lawyer can’t serve as an oath-taker, you may find a good notary here:

  • Attorney listings
  • Lawyer referral service directory
  • A law firm
  • Use services of a bank representative

If you or someone you can trust do not have a running relationship with a professional, make sure you check that their track record doesn’t have any problems and that they have plenty of experience. Also, make sure their practice area matches your state and county.

Download a self-proving affidavit form

The next step of your journey is to get the right wording on your document. You can ask your notary public for assistance to make sure that the wording meets all of the requirements. However, you don’t need to pay the fee for the creation of the content of the document.

You can just download a self-proving affidavit form for free here on FormsPal. It includes all of the details that make sure that the document does its job well and is completely free. There are several options on the website, so choose the one that serves your purposes better and download a copy.

Fill in the form

Once you have a valid self-proving affidavit form, fill it out. You can do this in the presence of the notary public or together with the witnesses. Make sure to fill in the correct date and double-check the spelling of all the names that you mention in the document.

The document should include:

  • The testator’s state and county
  • The testator’s name and signature
  • Names and signatures of the two witnesses
  • Notary public’s statement (filled in later)
  • Notary public’s seal (filled in later)

You don’t need to put a zip code on the document, but you do need to specify your county. Contact information is also optional since you’re mentioning mailing addresses.

Note that a notary cannot be both the witness and notary public for the same document. The notary will provide their name and signature on their own.

Sign the form in the presence of a notary public

Once everything is filled in properly, have the two witnesses sign the document and let the professional notarize it. The notary public will put their name and signature on the affidavit and put their seal on it. From this moment onward, the document is considered to be in power and you can attach it to the will.

Published: Sep 21, 2020