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You know that a last will and testament is a super important document when it comes to estate planning, especially if you have a family.
Once you’ve written your will, you’re good to go, right? Not so fast. You need to make it legally binding. In most states, that only requires printing your will, signing and having it witnessed by two adults. In other words, it doesn’t require notarization . . . so what’s the deal with getting your will notarized, then?
Although this step is (usually) optional, it could make carrying out your will significantly easier on your loved ones down the road. This part of the process involves a document called a “self- proving affidavit,” and fortunately, it’s easy to add to your will.
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A self-proving affidavit is a document, signed by you and two witnesses, that verifies under oath that your witnesses saw you sign your will and that it’s legally valid. Generally speaking, your self-proving affidavit must be notarized, meaning you and the witnesses sign it in front of a notary public. Often, the self-proving affidavit is only about a page long.
Note that in most states (except Louisiana), you don’t need a notary to make your will legally binding (remember what we said earlier about just printing and signing in front of two witnesses, without a notary?). So, this is a supplemental document that you can sign in addition to your will—its sole purpose is to make your will easier to “prove” down the line.
Since you’ll be gone, you can’t speak for yourself when your loved ones take your will to probate court. In every state, your will needs witnesses because they can confirm that you signed this will and were of sound mind.
One way to make sure the will is valid is to have the judge bring both witnesses into court and ask in official legal language whether the signatures are genuine, and whether they believe the testator was mentally coherent and not under duress. The self-proving affidavit squares off this inconvenience.
Witnesses to a self-proving affidavit swear, under penalty of perjury, that what they are signing is true. Their participation in witnessing the self-proving affidavit is a way to swear to the will’s authenticity, the way they’d be asked to if they showed up in probate court.
The self-proving affidavit lets your loved ones bypass the step of having witnesses testify to the will’s authenticity in court, which saves time and legal fees, and keeps witnesses from having to take time off work or travel to appear in court. Overall, it saves your loved ones stress at a time when they’re grieving.
A self-proving affidavit also lets you avoid complications if your witnesses turn out to be unavailable. If your original witnesses are dead or unreachable when it’s time to validate your will and you don’t have a self-proving affidavit in place, this puts the probate judge in a more difficult position. Some options to prove a will without a witness could include contacting the lawyer who witnessed the will-signing or even verifying signatures with a handwriting expert (legal processes can get complex and there may be caveats to proving a will without a witness; consult with a legal professional to get the most specific advice to your situation).
It’s always possible that the judge might accept the will without taking these measures, especially if no one is contesting the will. Still, that means leaving things up to an unknown judge’s preference. Setting up a self-proving affidavit helps remove any potential uncertainty about whether this really is the correct will.
The short answer is probably not, although it’s a good idea. If your will is written, signed and witnessed in accordance with your state laws, then it’s valid, with or without any extra documentation. A self-proving affidavit can simply make the process easier. You might choose to notarize your will at the same time as you work with the notary to finalize the self-proving affidavit, or you might notarize the affidavit only. State laws can vary, so it can be helpful to check on how your state treats the probate process and whether a self-proving affidavit could streamline approving your will.
So when people ask us, "Can you just write a will and get it notarized?" the short answer is: Pretty much. That assumes that you have written a will in a manner that's legally sound and that you've followed all applicable rules for making it legally binding. If you have any questions, consult an attorney.
In many cases, it’s clear which will to follow when someone dies. If there are multiple versions of a will, a judge may have to decide which one is the valid version to follow. Generally, the will with the latest valid date and signature is considered the legally binding version, as long as it’s correctly executed and meets your state’s legal requirement. A self-proving affidavit may also help strengthen the case of a particular will.
Bottom line? You can help make the process smoothest for your loved ones by including an affidavit whenever you revise or rewrite your will.
Life is busy. If the thought of adding another legal doc to your to-do list is stressing you out, let’s pause for perspective. Realistically, what are the consequences if you let this one slide?
A self-proving affidavit is an optional document, so you do not need one in order to create a legally valid will. It’s worth discussing with your attorney to decide whether adding this option is right for you. There might be some extra time, money and inconvenience involved for your family in some cases without this affidavit, but the more important thing is that they have a will to follow.
That said, this is a pretty simple document to put in place, and it can save time and stave off complications. Once you see what the process looks like, you may decide that signing a self- proving affidavit is a worthwhile step to pave a much smoother probate process down the road.
Here’s your quick guide to getting this document ready so you can make probate simpler for your family.
Your will is an essential part of distributing your estate and helping to care for loved ones after you die. If your will is the hero, think of the self-proving affidavit as the handy sidekick making it faster and easier for your will to do its important job.
Fabric exists to help young families master their money. Our articles abide by strict editorial standards.
Information provided is general and educational in nature, is not financial advice, and all products or services discussed may not be offered by Fabric by Gerber Life (“the Company”). The information is not intended to be, and should not be construed as, legal or tax advice. The Company does not provide legal or tax advice. Consult an attorney or tax advisor regarding your specific legal or tax situation. Laws of a specific state or laws relevant to a particular situation may affect the applicability, accuracy, or completeness of this information. Federal and state laws and regulations are complex and are subject to change. The Company makes no warranties with regard to the information or results obtained by its use. The Company disclaims any liability arising out of your use of, or reliance on, the information. The views and opinions of third-party content providers are solely those of the author and not Fabric by Gerber Life.
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