A self-proving affidavit form is a document that is signed by the testator and two witnesses in the presence of a notary public as proof that the testator signed their last will on their own free will.
The document is validated by the signatures of the testator, two witnesses, and the notary public (notarized), and then it is attached to the last will.
The primary purpose of a self-proving affidavit is to prove that a testator’s last will is legally valid during probate and the two witnesses declare under oath that they witnessed the testator sign the last will. This way, the testator ensures there will be no disputes after their death, for the self-affidavit can be used as proof of the will’s validity if this is questioned after his or her demise. Attaching a self-affidavit to a will consequently makes it self-proved.
Importance of Self-Proving Affidavit Form
After the demise of a testator, their will has to go through the probate court before the distribution of inheritance. Probate courts have to prove the authenticity of the will. A lawfully valid will has to be witnessed. Witnesses confirm that the presented will is actually the one the testator signed to. Instead of having the witnesses come in, a self-proving affidavit is enough proof for a probate court. It is taken as the witnesses’ sworn written testimony to witnessing the will signing, even if the witnesses are unavailable during the probate process.
This way, through a self-affidavit, the family and loved ones avoid the inconveniences associated with the probate process. The transferor distribution of property is thus timely executed, saving time for the family, and the estate executor can carry out their obligations with non-disputable proof of the will’s validity.
For a self-affidavit to be valid, the following requirements must be satisfied:
- The testator and the appointed witnesses must be 18 years or older
- Signatories to the self-affidavit must be of sound mind
- The document must be made and signed by the testator
- The two witnesses should not be beneficiaries under the testator’s will
Self-Proving Affidavit VS. Attestation Clause
Other than a self-proving affidavit, the authenticity of a Last Will and Testament can be proven by an attestation clause. Just like a self-proving affidavit, an attestation clause declares that the witnesses are of legal age and the signing of the will was in accordance with state laws.
Despite their similarities, a self-affidavit differs from an attestation clause in certain ways. An attestation clause is inserted in the will, where else a self-approving affidavit form is a separate official document that is attached to the will.
Also, an attestation clause is primarily proof of the legality of a will and is not considered proof that the testator signed the will willingly. Therefore, it is not a consideration when it comes to the execution of the will – witnesses would still have to appear during probate to issue their testimony. Consequently, if the witnesses are unavailable during probate, the process would have to be delayed for the court cannot conclusively prove that the will represents the testator’s wishes. This is not the case if a self-proving affidavit is in place.
The testation clause is signed during the signing of the will, where else a self-proving affidavit is signed separately and in the presence of a notary public. Basically, the attestation clause only provides evidence of the authenticity of the signatures.
Filling a Self-Proving Affidavit Form
For a legally enforceable document, every detail is of importance. As a testator, the last thing you want is a self-proving affidavit that does not serve its intended purposes in the long run. To have a clear understanding of how to come up with an effective self-proving affidavit, this article will provide a step-to-step guide for testators to follow.
Select the concerned documents
Firstly, gather all the documents and parties relevant to the signing of a self-proving affidavit – this includes the last will being referred to, a self-affidavit form, two witnesses, and the notary public. The witnesses should have valid identifications with them for verification.
Note: you can consider taking the help of a lawyer to help you craft an up-to-standard will.
Input state-specific location
Secondly, indicate which state under the jurisdiction the document falls under. This is normally the testator’s state of residence. Indicate the county as well. Different states will have different guidelines when it comes to probate and hence the need to include the affidavit’s jurisdiction. It is vital to note that even though most states permit the use of a self-proving affidavit, there are exceptions, such as Ohio.
Identify the verifying witnesses
Thirdly, the affidavit should identify the individuals witnessing the Last Will and Testament. Each witness should be identified by their legal name. At this juncture, the notary public can verify their identity, hence the need for identification documentation.
State purpose of the document
Next, the witness statement should follow. This is normally pre-written in the self-affidavit form provided by the probate court. The statement should indicate the document being witnessed – the Last Will and Testament. The title of the will should be written down. Fundamentally, the witness statement should declare that the witnesses are signing under oath, the testator signs the document willingly and that the witnesses are of legal age.
Sign the document
After the witness statement has been reviewed and understood, the signatories to the affidavit should then sign the document. It is recommended that the signing of the affidavit be done at the same time when the will is being signed. However, probate courts ordinarily accept affidavits signed at a later date. The testator signs the affidavit first, followed by the witness. Next to the signatures, the date of signing should be provided.
Lastly, there should be a declaration that the notary public witnessed the signing of the affidavit. The notarizing declaration should state the date of witnessing and the testator’s identity. The name of the notary public should be provided as well as the date when his or her commission expires. Finally, they should provide their official stamp/seal, and the affidavit becomes notarized and legally enforceable.
Note: In most states, a self-proving affidavit is not needed to prove the authenticity of a will and for it to be legally enforceable. An affidavit is usually a supplementary document to smoothen the probate process. In a state like Washington D.C, with or without a self-proving affidavit, probate is necessary to validate a will. Testators can use the help of a notary public in some states like Vermont, to create a self-proving. Therefore, one does not need to create an affidavit themselves.
Following are some free downloadable templates for you;
Forms by State
Signing Requirements by State
The signing of a self-proving affidavit is typically governed by state laws. In this regard, these requirements will vary depending on the state. The following states have the signing requirements as follows:
|State||Signing requirements||State law|
|Alabama||Two Witnesses and Notary Public||Alabama Code, Section 43-8-132|
|Arizona||Two Witnesses and Notary Public||Arizona Revised Statutes, Section 14-2504|
|Alaska||Two Witnesses and Notary Public||Alaska Statutes, Section 13.12.504|
|Arkansas||Two Witnesses and Notary Public||Arkansas Annotated Code, Section 28-25-106|
|Colorado||Two Witnesses and Notary Public||Colorado Revised Statutes, Section 15-11-504|
|California||One Witness||California Probate Code, Section 8220|
|Connecticut||One or more Witnesses and Notary Public||Connecticut Revised Statutes, Chapter 802b, Section 45a-285|
|Delaware||Two Witnesses and Notary Public||Delaware Code, Title 12, Section 1305|
|Florida||Two Witnesses and Notary Public||Florida Statutes, Section 732.503|
|Georgia||Two (2) Witnesses and Notary Public||Georgia Code, Section 53-4-24|
|Hawaii||Two (2) Witnesses and Notary Public||Hawaii Revised Statutes, Section 560:2-504|
|Idaho||Two (2) Witnesses and Notary Public||Idaho Statutes, Section 15-2-504|
|Indiana||Not Required||Indiana Code, Section 29-1-5-3.1|
|Illinois||Two (2) Witnesses||The Illinois Compiled Statutes, Chapter 755, Section 5/6-4|
|Iowa||Two (2) Witnesses and Notary Public||Iowa Code, Section 633.279|
|Kansas||Two (2) Witnesses and Notary Public||Kansas Statute, Section 59-606|
|Kentucky||Two (2) Witnesses and Notary Public||Kentucky Revised Statutes, Section 394.225|
|Maine||Two (2) Witnesses and Notary Public||Maine Probate Code, Title 18-C, Section 2-503|
|Massachusetts||Two (2) Witnesses and Notary Public||Massachusetts General Laws, Chapter 190B, Section 2-504|
|Michigan||Two (2) Witnesses and Notary Public||Michigan Compiled Laws, Section 700.2504|
|Minnesota||Two (2) Witnesses and Notary Public||Minnesota Statutes, Section 524.2-504|
|Mississippi||Two (2) Witnesses and Notary Public||Mississippi Annotated Code, Section 91-7-10|
|Missouri||Two (2) Witnesses and Notary Public||Missouri Revised Statutes, Section 474.337|
|Montana||Two (2) Witnesses and Notary Public||Montana Annotated Code, Section 72-2-524|
|New Hampshire||Not Required||New Hampshire Revised Statutes, Section 551:2-a|
|Nevada||Two (2) Witnesses and a Notary Public||The Nevada Revised Statutes, Sections 133.050 and 133.055|
|Nebraska||Two (2) Witnesses and Notary Public||Nebraska Revised Statutes, Section 30-2329|
|New Jersey||Two (2) Witnesses and Notary Public||New Jersey Statutes, Section 3B:3-4|
|New Mexico||Two (2) Witnesses and Notary Public||New Mexico Annotated Statutes, Section 45-2-504|
|New York||One or more Witnesses and Notary Public||New York Court Acts, Section 1406|
|North Carolina||Two (2) Witnesses and Notary Public||North Carolina General Statutes, Section 31-11.6|
|North Dakota||Two (2) Witnesses and Notary Public||North Dakota Century Code, Section 30.1-08-04|
|Oklahoma||Two (2) Witnesses and Notary Public||Oklahoma Statutes, Section 84-55|
|Oregon||One or more Witnesses and Notary Public||Oregon Revised Statutes, Section 113.055|
|Pennsylvania||Two (2) Witnesses and a Notary Public||The Pennsylvania Consolidated Statutes, Title 20, Section 3132.1|
|South Carolina||Two (2) Witnesses and Notary Public||South Carolina Code of Laws, Section 62-2-503|
|South Dakota||Two (2) Witnesses and Notary Public||South Dakota Codified Laws, Section 29A-2-504|
|Rhode Island||One or more Witnesses and Notary Public||Rhode Island General Laws, Section 33-7-26|
|Tennessee||One or more Witnesses and Notary Public||Tennessee Code Annotated, Section 32-2-110|
|Texas||Two (2) Witnesses and Notary Public||Texas Statutes, Estates Code, Section 251.104|
|Utah||Two (2) Witnesses and Notary Public||Utah Code, Section 75-2-504|
|Vermont||Two (2) Witnesses and Notary Public||Vermont Statutes, Title 14, Section 108|
|Virginia||Two (2) Witnesses and Notary Public||Virginia Code, Section 64.2-452|
|Washington||One or more Witnesses and Notary Public||Washington Revised Code, Section 11.20.020|
|West Virginia||One or more Witnesses and Notary Public||West Virginia Code, Section 41-5-15|
|Wisconsin||Two (2) Witnesses and Notary Public||Wisconsin Statutes and Annotations, Section 853.04|
|Wyoming||Two (2) Witnesses and Notary Public||Wyoming Statutes, Section 2-6-114|
Frequently Asked Questions
What are the consequences of not having a Self-Proving Affidavit?
A self-proving affidavit is normally optional; therefore, there are no legal ramifications for not attaching it to a will. However, in its absence, the probate process is likely to take longer, cost more money, and inflict inconveniences to your family and beneficiaries during probate, especially if a third party question its authenticity.
Which documents can a Self-Proving Affidavit be attached to?
A self-proving affidavit is customarily attached to a will or a Codicil. This is to prove the validity of the will and speed up the probate process. This is because a will only become legally effective after the testator dies, and in his or her absence, a self-proving affidavit provides the probate court a legal alternative of proving whether the will is genuine.