If you’re creating your will online with a drafting solution like the kind available with Just In Case Estates, you may find that, depending on your state of residence, you have two options when it comes to witnessing your will:
- Witness and Acknowledgement by the Testator (you) and two Qualified Witnesses
- Self-Proving Affidavit signed by the Testator (you), two Qualified Witnesses, and a Notary Public
The first option to collect only the two Qualified Witnesses is inherently the simpler approach. Why is it prudent to make the extra effort to conduct the signing ceremony in the presence of a notary public?
Addressing this question requires understanding the role of a notary public. A notary public is a public official appointed by a state government to help deter fraud. Notary publics witness the signing of important documents and verify the identity of the signer(s), their willingness to sign the documents, and their awareness of the contents of the document or transaction.
By properly completing the self-proving affidavit with the help of a notary public licensed in your state, you are making your will “proved.” The court accepts the written statement and seal of the notary public as proof that he or she, acting as an agent of the state, validated that will’s execution met the state’s requirements. The will can be admitted to the Court without any further testimony from the signing ceremony witnesses.
What does a self-proving affidavit look like?
The typical self-proving affidavit has three components:
- Attestation and signature of the Testator (the person making the will
- Attestation and signature of the Witness
- Notary Public signature
States that allow wills to be made self-proved often recommend a specific format to use for the self-proving affidavit. If you are creating your own will, review your state statutes to ensure that you are using the recommended format. Florida, for instance, recommends the format below (Florida Statutes §§ 732.503):
STATE OF _________________
COUNTY OF ______________
I, _____ , declare to the officer taking my acknowledgment of this instrument, and to the subscribing witnesses, that I signed this instrument as my will.
[Testator Signature]
We,______and _____, have been sworn by the officer signing below, and declare to that officer on our oaths that the testator declared the instrument to be the testator’s will and signed it in our presence and that we each signed the instrument as a witness in the presence of the testator and of each other.
[1st Witness Signature and Address]
[2nd Witness Signature and Address]
Acknowledged and subscribed before me by means of ☐ physical presence or ☐ online notarization by the testator,(type or print testator’s name), who ☐ is personally known to me or ☐ has produced(state type of identification—see s. 117.05(5)(b)2.)as identification, and sworn to and subscribed before me by each of the following witnesses:(type or print name of first witness)who ☐ is personally known to me or ☐ has produced(state type of identification—see s. 117.05(5)(b)2.) as identification, by means of ☐ physical presence or ☐ online notarization; and(type or print name of second witness)who ☐ is personally known to me or ☐ has produced(state type of identification—see s. 117.05(5)(b)2.)as identification, by means of ☐ physical presence or ☐ online notarization. Subscribed by me in the presence of the testator and the subscribing witnesses, by the means specified herein, all on_______ (date).
[Signature of Officer]
(Print, type, or stamp commissioned name and affix official seal)
What happens if you don’t make your will self-proved?
As long as you follow your state’s requirements for execution of the will, your will is still valid even if you do not make it self-proved. However, the Court may require one or more of your witnesses to appear in court as part of the probate proceeding to testify that the will was properly executed. Fulfilling this requirement may delay and increase the cost of your probate proceeding.
Not all states require a self-proving affidavit in order for the will to be proved. In California, a will can be self-proved so long as the signature page incorporates the proper witness attestation clause describing the necessary facts and formalities followed and observed in executing the will (Cal. Prob. Code §8220), provided that the will is not being contested.
The Final Word
Making your will self-proved through a self-proving affidavit can save your estate time and money. For this reason, most lawyers generally include a self-proving affidavit in their will packages, and you'll find state-specific self-proving affidavits in Just In Case Estates will packages for all states that recognize these affidavits as a way of self-proving the will.
