Self-Proving Affidavit vs Notarizing a Will: A Detailed Comparison

Let's say you've got your last will and testament all written out and finalized. Should anything happen to you tomorrow, you'll be alright, right? Well, that depends. A last will and testament is only considered complete and legally binding once it meets certain requirements, such as having your signature and the signature of at least two witnesses. You can consider creating a self-proving affidavit to further protect your will and make the probate process smoother. This legal document testifies to the validity of your will and reduces the need for witnesses to testify in court.

While there are a few different state-specific circumstances under which a scrap of paper or even the words of a close loved one might be enough to direct an inheritance, most wills in most states require two different things: your signature as the grantor of the will, and the signature of at least two witnesses who are, ideally, unrelated to the will (i.e., not the beneficiaries) and of legal age.

But what about notarization? If you’ve ever had to sign certain legal documents – whether a civic marriage or a deed for property – you’ve had to use the services of a legal notary public. However, most states do not need the will to be notarized for it to be valid.

That’s right. There are some significant benefits to notarizing a will anyway. You can draft a will right now, find two legal adults, and supersede entirely the document you prepared yesterday. And in one specific state – Louisiana – a will must be notarized to be valid.

In the rest of the country, notarizing a will can smoothen the probate process and help your beneficiaries get to their inheritance faster while sidestepping many potential issues.

What is a Self-Proving Affidavit?

An affidavit is a legal document representing a legally binding statement. It is, by and large, the truth in legal writ. A self-proving affidavit is nothing more than a separate document that you can create to state, under oath, that you signed your will and that your witnesses saw you do it.

This document is usually no longer than a single page, written in legal language and the first person, containing all the details of your person and your witnesses, signed under oath and notarized by a notary public (with your witnesses present).

The oath part is essential. The difference between a newspaper article and an affidavit is that you must be sworn in, to tell the truth under oath for an affidavit to be valid. The threat is that if you lie in an affidavit, you can be charged with perjury.

The self-proving portion of the affidavit has nothing to do with the affidavit itself but with the will. The point of a self-proving affidavit is to ensure that you have a legally binding document that testifies that your will is valid, under threat of serious legal repercussions if you lied.

Why not just notarize the will itself? If you didn’t begin with, you can’t. The notary must be present when you and your witnesses sign the document to notarize a will. You can simply create another will and have it signed before the notary, superseding the other document. Or you can save yourself the trouble and draft a more straightforward document that states that your will is valid.

When is a Self-Proving Affidavit Useful?

The benefits of notarizing a will – whether at its inception or through a self-proving affidavit – is to protect your will from potential contention after your death and ensure your judgment and wishes are respected.

While the courts will accept any valid will, they will have a more challenging time granting anyone the right to contest your will if it has been notarized.

Furthermore, a probate court's core purpose is to prove the will. This may involve calling on the witnesses to testify to the court once more that they genuinely witnessed you signing your own will and that you did so at a point when you were of sound mind and judgment.

A self-proving affidavit gets the legwork of proving a will out of the way by producing an additional legal document that testifies to the validity of your will. In addition to making things easier for the courts, this can make things easier for your family and the witnesses.

The witnesses are crucial to proving a will, whether in court or through an affidavit. Probate courts are put in a very difficult situation without the witnesses – perhaps they’ve gone missing, died, or are in a foreign country and cannot return. They will have to find someone to validate and prove the will, including the lawyer who watched you sign it or a handwriting expert to compare sample signatures and determine whether you really did sign your own will.

Probate can be a long and arduous process, so doing what you can in life to minimize it in death can help smooth things out.

What Does a Will Need to be Valid?

For a will to be valid, it must have your signature and the signature of at least two adult witnesses who are not connected to the will as beneficiaries or other interested parties.

Alternatively, you can create a will entirely in your handwriting without needing witnesses. This is called a holographic will. However, such a will is not valid in every state and requires an expert’s testimony based on various handwriting samples and a copy of your handwritten will.

A few rare types of wills exist that may be valid under certain circumstances but usually aren’t. These include oral wills, also known as verbal wills or spoken wills. Most probate courts will not accept an oral will, as there is essentially nothing to back up the claim of an oral will.

If you are dying and have prepared nothing in the way of estate planning, then tell your eldest son how you wish your estate to be distributed; it will most likely not be binding.

But suppose you were dying in a sudden and horrific accident with no opportunity to prepare yourself for death or were in imminent danger of death with little time to spare. In that case, the court may respect your last wishes if relayed by a loved one who acted as a witness. Be prepared for an uphill battle even under such terrifying circumstances, however.

Should I Bother Notarizing My Will?

To begin with, notarizing your will can make it much easier to prove, allowing the probate process to move past that hurdle and focus on executing the will.

If you find that your will is more likely to be contested or argued over in a family fight, then going the extra mile to notarize it may be well worth the trouble. Discuss this and other estate planning questions with an attorney at Werner, serving those in Newport Beach, Oxnard, and Pasadena.