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Does a Will Have to be Notarized?
More and more Americans are choosing at a young age to create an estate plan and write a last will and testament. There are many reasons why people do this, but most want to make sure that their assets are distributed in accordance with their wishes after they pass away. Many people also opt to create a will because they want to make the estate distribution process easy and painless for their families. However, simply creating a will and signing it in the presence of witnesses is often insufficient. Depending on the circumstances, your heirs may still have to overcome expensive and time-consuming legal hurdles in order to get their inheritance. To simplify the probate process for your loved ones, it is useful to get your will notarized and also obtain an accompanying self-proving affidavit.
What is a Self-Proving Affidavit?
A self-proving affidavit is a legal document that affirms, together with witnesses, that an event happened. In the case of a Last Will & Testament, this document proves, beyond a shadow of a doubt, that your witnesses saw you sign your will.
But, isn’t what the witness section in a will is for? Why would you need them to sign an affidavit, too?
A lot can happen after you sign your will. You could die a few years afterward. Or, twenty years could pass before you meet your end. At that time, one/both of your witnesses might pass away. For whatever reason, your executor might not be able to track them down.
Why is this important? When the time comes to probate your will, the courts may call your witnesses to testify. If they cannot confirm they signed your will, it could throw the legitimacy of your document into question.
Adding an affidavit removes this worry. The presence of this document establishes, beyond a shadow of a doubt, that your witnesses saw you sign your will. If they are dead/unreachable, this piece of paper will act as their voice, in absentia.
How Can I Obtain One? Does it Have to Be Notarized?
Unlike your Last Will & Testament, a self-proving affidavit does require notarization. So, how do you go about getting one? After completing your Last Will & Testament, contact your witnesses. Witnesses can be anyone over the age of 18 that is NOT named as a beneficiary.
Tell them about your will, as well as the affidavit, and it needs to be notarized. Figure out a time that works for everyone, then make an appointment with a Notary Public. At the Notary’s office, you’ll sign both the Last Will & Testament and the affidavit. The Notary will then sign their portion of the document to complete the process.
What If My Current Will Isn’t Self-Proving?
Already filed a Last Will & Testament? If you want to add the additional protection of a self-proving affidavit, you don’t have to start over. Instead, you can add this document by drafting a codicil.
However, as you might have guessed, a Notary Public will have to notarize it. Aside from re-contacting witnesses, it’s that simple.
Contesting a Self-Proving Will
Even if you create a self-proving affidavit or have your will notarized, the document can still be contested. However, a judge is less likely to rule a last will and testament invalid if the testator has gone through these steps. For example, if a judge is presented with two completely different wills supposedly created by the same individual, and only one of the documents comes with a self-proving affidavit, the judge will likely favor the self-proving will.
However, if there are two wills containing very similar instructions and only the older one is self-proving, the judge will likely favor the newer document. Of course, witnesses to the will can be called to testify in both of these situations to help the judge determine the correct outcome of the case. Ultimately, it’s a good idea to notarize your will or make a self-proving affidavit every time you update the document, as this will make the probate process much smoother for your loved ones down the road.
There is a State-by-State Difference When it Comes to Notarization.
Does your will have to be notarized? Technically, no. But, our nation is a complicated place to practice law. Cross-state lines and rules can change dramatically. Naturally, regulations governing self-proving affidavits vary widely from state-to-state.
While most states have provisions that allow such affidavits, the District of Columbia and Ohio don’t allow them. In those jurisdictions, witnesses will need to verify your document in probate court, no matter what. In these states, you may want to notarize your will, just to be safe.
What happens if a will is not notarized? On the other end of the spectrum, getting a affidavit is unnecessary in California, Indiana, Nevada, Illinois, and Maryland. In these states, the signature of witnesses is inherent self-proof. Thus, they do not need to testify in probate court.
In any other state, getting a self-proving affidavit is a great idea. However, rules governing them can get tricky. In some places, both witness and testator signatures must be notarized. In others, only the witnesses require this treatment. Consult a lawyer if you have to have a will notarized. Some of the online will makers that we reviewed have attorney directories where you can select a legal advisor in your state.
Bottom Line
Each state has its own rules and requirements for estate planning documents. Some states require wills to be notarized, others accept self-proving affidavits, and a few states don’t recognize self-proving wills at all. However, if you want to simplify the inheritance process for your family as much as possible, it’s a good idea to have your will notarized or have it come with a self-proving affidavit. Fortunately, many online will-making companies allow their customers to create a self-proving affidavit in addition to a last will and testament.
