A person’s last will and testament is an important document governing their final decisions on the matter of their material possessions and estate. But not all wills are created equal.
Every last will and testament must be legitimized in probate court, after the attorney, personal representative, or loved one of the decedent has petitioned for the beginning of the probate process. There are different types of wills, some of which are easier to legitimize in probate than others. Self proving wills are among the easier wills to legitimize and may be more difficult to refute without proof of forgery.
What is a Self Proving Will?
A self proving will is a will that has been signed, witnessed, and notarized alongside separate notarized affidavits for each witness, testifying the will’s validity. A will may be made self proving in nearly every state save Vermont, Maryland, Ohio, and the District of Columbia. The purpose of a self proving will is to speed up the legitimization process – a signed statement or affidavit by each witness eliminates the need for the witnesses to appear personally and testify to the will’s validity in court.
While the affidavits are necessary in most states where self proving wills may be created, California does not require the creation of an affidavit for each witness to create a self proving will. A signed statement created by each witness and attached to the will is enough.
Self proving wills save time, as they do not require witnesses to come forward and personally testify to the legitimacy of a will. They also solidify the legitimacy of a will, which makes it more difficult to argue against the will’s validity in court.
Without attached affidavits or signed statements, a regular will usually requires that the witnesses of the will come forward and personally attest to the legitimacy of the will within the decedent’s probate court, by confirming that the will was signed by the testator before their death.
Does a Will Need to Be Self Proving?
No. A will does not need to be self proving to be a valid will. Self proving wills are an additional level of convenience and security, helping witnesses avoid testifying in court at the additional cost of drafting and notarizing a legal affidavit or written statement. However, wills are just as valid without the additional help.
A last will and testament that has been witnessed and notarized will usually be validated, unless someone can provide express proof of coercion, forgery, or fraud.
That being said, there are more kinds of wills than simply self proving or written wills. However, not all types of wills are valid, and some are only valid in certain states, or under certain circumstances.
Do I Need a Lawyer for a Self Proving Will?
Wills and affidavits are legal documents that you can draft and create yourself. But this is not always a good idea. While there are plenty of free templates online, it is important to note that these should only serve to give you some reference of what these documents might look like.
Templates are either written for someone else entirely, or for no one in particular, and are never the ideal choice when opting for a legal document that should personally represent your wishes, especially after your death. There may be state-specific or case-specific nuances that you are not aware of yet, as well as a host of different limitations when picking a DIY will.
Affidavits and written statements are much less complicated than a will, but it might not hurt to put your witnesses in touch with your lawyer to help with the legal wording.
What If There Are No Witnesses?
Not all wills are properly witnessed. That is okay – not all wills have to be. Witnesses help, because it makes it harder to call the legitimacy of your will into question. However, some wills are valid without witnesses.
In California and a few other states, holographic wills (handwritten wills) are not ideal, but may be valid as long as there is proof of mental acuity and intent, as well as a handwriting analysis providing proof that the will was indeed created and signed by the testator.
Some types of wills are only possible through a witness. An oral will, or a nuncupative will, only exists in the form of a witness describing what the testator said. Oral wills are rarely, if ever, accepted as valid wills, with a few select exceptions.
For example, military personnel in an active combat zone may give their comrades a verbal will before dying in battle – if the witnesses of this will can write it down in full as soon as possible and relay the events to a court, they may be able to get it validated, provided there is no pre-existing written will to supersede the verbal one.
Other Types of Wills
Wills themselves can be an effective and simple estate plan, but they come in a variety of shapes and sizes. We’ve discussed simple wills, nuncupative wills, holographic wills, and self proving wills so far. Some other types of wills include:
- Joint will – a joint will is one last will and testament created for two or more people. Joint wills can be difficult because of their inflexibility – they are usually built to favor the surviving spouse or other testator, and cannot be changed once the first testator dies.
- Testamentary trust will – these are wills drafted to call a trust into life. Trusts are a three-way agreement between the trust’s creator (you), a managing trustee, and a beneficiary. While wills can be likened to a set of instructions performed immediately after your death, a trust can be used to create a legal entity that continues to manage and distribute your assets for years to come. However, most people create living trusts instead of testamentary ones.
- Living will – living wills are not conventional wills, but advance medical directives instead. These are documents used to explain to medical professionals whether you consent to certain medical procedures. Living wills are very useful for patients with chronic or progressive illnesses, allowing you to advocate for yourself, in your own absence.
No two estate plans should be exactly alike. Your estate plan must be tailored to your individual circumstances and needs. And just like life, those needs can change with time.
Regardless of how well your current estate plan fits you, be sure to revisit and revise your plan every few years, or after every life-changing event. A stagnant estate plan may become a cause of confusion and strife, when your time comes, and it no longer reflects how you feel or what you want.