While it is strongly recommended that you speak to a lawyer before drafting and signing a will, there are some options available for writing a will on your own. These can make sure that your last wishes are adhered to when it comes time to distribute your estate.
Throughout this process, it is important to keep in mind that each state has its own requirements and procedures for drafting a will. Thus, whether or not your will needs to be notarized will depend on state law.
In most cases, you do not need to have a will notarized if it is drafted properly. This includes having two witnesses and the testator sign the will, along with any other specific state requirements. If you decide to attach a self-proving affidavit to your will, however, then both the will and the attached affidavit will need to be notarized.
What is a Self-Proving Will?
A “self-proving” will is basically a will that has an affidavit attached to it. An affidavit is a legal document that contains a written statement of oath. For the purposes of a self-proving will, two witnesses must sign the affidavit, certifying that they were the parties who watched the testator sign the will instrument. The affidavit must be notarized (i.e., signed by and in front of a licensed notary) for it to be considered valid.
In most states, the probate court will accept this affidavit as proof that the will is valid. This in turn will negate the requirement of having the witnesses appear in court to testify that they watched the testator sign the will after the testator has died.
This can make the probate process go much quicker and can help out the executor of the estate since there will be no need for them to locate the witnesses to appear in court. The affidavit will serve as legal sufficient proof on its own.
Some states, however, do not require the affidavit to be notarized. Other states do not allow the testator to attach an affidavit to their will at all. In either category of states, the will is considered sufficient without an affidavit as long as two witnesses watched the testator sign the will and both witnesses signed the will after the testator did.
If a testator is not sure whether or not their state will accept an affidavit along with their self-proving will, then it would be in their best interest to contact a local estate attorney for further advice.
Should I Have My Self-Proving Will Notarized?
As discussed above, the answer to whether a self-proving will needs to be notarized or not will depend on the laws of the state in which a testator resides. Some states do not require an affidavit to be notarized, whereas other states do not provide the option to attach an affidavit to a self-proving will at all.
For example, neither the District of Columbia nor the state of Ohio offer the option to attach an affidavit to a self-proving will. Accordingly, the executor of the estate will need to locate the witnesses who originally saw the testator sign the will and tell them to appear in front of the probate court after the testator dies. In other words, only the probate court can verify that the will is valid in these states; an affidavit will not suffice.
As for the other states that do not require an affidavit at all, such as California, Illinois, Indiana, Nevada, and Michigan, the will just must be signed by a testator and two witnesses. No further affidavit is necessary to prove that a will is valid to the probate court. Ultimately, the best way to determine whether a self-proving will needs to be notarized or not would be to consult the advice of an attorney.
If a person is already aware that their state allows for and/or requires an affidavit to be attached to a self-proving will, then the following information may be useful. In general, the list of sworn statements contained in the affidavit (i.e., what the two witnesses must certify to when they sign) should include:
- A statement verifying that the testator told the witness that it was their will they were signing;
- A statement certifying that the testator voluntarily drafted their will and that they were not coerced or pressured by any other parties (including the witnesses themselves) to form the will;
- A declaration made by the witness that the testator requested that they be one of the persons to bear witness to the testator signing the will, as well as one of the witnesses to sign the will for validation purposes;
- A declaration made by the witness that the testator was at least the age of majority (usually 18 years old) and of sound mind when they created the will; and
- A declaration made by the witness that the witness themself is at least 18 years of age and is eligible to sign as a valid witness.
The above declarations can be set out as separate clauses or combined in a long paragraph, so long as they adhere to all of the legal requirements. If a person is not comfortable with drafting the affidavit themselves, then they should really hire a local attorney to do it; both for legal reasons and to have peace of mind.
In addition, if a state requires that a self-proving will be notarized, the following list provides some best practices to keep in mind when having the will and sworn statements notarized. These include that:
- A testator and both witnesses must appear before the notary with the original version of the will and sworn statements. Neither one of these documents should be signed until all three parties are in the presence of the notary.
- The testator and both witnesses must also bring valid identification with them to the notary, such as a passport or driver license, to prove to the notary that they are who they say they are before signing.
- The testator and both witnesses will be required to sign the will and affidavit before the notary. The notary must also sign the will and the attached statements in front of all parties and prove that they are in fact a licensed notary.
Finally, it should be noted that there is typically a small fee to use notary services. Thus, an individual may want to confirm the amount of fees they will have to pay with the notary before arriving. They should also ask the notary what methods of payment are accepted to notarize all of their documents or else they may have wasted not only their own time, but also the time of the two witnesses who must appear with them.
Do I Need a Lawyer to Create a Self-Proving Will?
Although a self-proving will and affidavit is an acceptable form in most states, the best way to ensure that your will is valid and will be accepted by the probate court is to consult a local will lawyer for further guidance.
An experienced will lawyer will already be familiar with the wills and estates laws in your area, can advise you on whether or not you can and/or should supply an affidavit along with your will, and if so, will be able to assist you with the process.
Your lawyer can also help you draft, edit, and review a self-proving will, as well as can discuss other legal instruments that you might be able to use and may be better suited for your circumstances than a self-proving will. In addition, if there is an issue with your self-proving will, your lawyer can make sure that it is corrected and can provide representation in court if necessary.
