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What are self-probating wills?
A Will is called "self-probating" when affidavits of the witnesses who saw the deceased sign the Will are attached to the Will. The affidavits (written statements made under oath) are prepared at the time the Will is executed (signed), and in them the witnesses say several things: a) that they saw the deceased execute (or sign) the Will, b) the deceased asked them to be witnesses to the Will, c) the deceased appeared mentally competent at the time the Will was signed, and d) that the deceased acted voluntarily (not out of fear, intimidation, or coercion). Without such affidavits, the Executor/Personal Representative (or a lawyer for the Executor) will usually have to round up the original witnesses (if possible) and have them come into court to state the circumstances surrounding the signing of the Will. If they don’t have to come to court, the witnesses will usually have to at least give an affidavit about those circumstances after the person who wrote the Will has died. If there are no affidavits attached to the Will and the witnesses to the Will signing can’t be found, the Will might not be admitted to probate by the court.
Self-probating affidavits help authenticate a Will as genuine. Courts generally allow a self-probating Will to be filed in a probate action with the affidavits, without requiring witnesses or new affidavits. A probate court in most states will usually require witnesses for a self-probating Will to come to court (if they are still available) only when someone chooses to challenge the Will in a Will Contest.
In some states, self-probating affidavits are not accepted where the death occurs shortly after the Will is signed, or when the Will was not executed under the guidance of an attorney. So be sure you know the requirements of your state law. |
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