A self-proving affidavit is a document that proves a testator created a will or codicil of their own volition. It also confirms that an individual signed a will in accordance with state law. A testator attaches this document to their will to make it part of the main document.
What Is a Self-Proving Affidavit?
A self-proving affidavit is a sworn statement you attach to a last will and testament that helps prove the will’s validity through probate. If you don’t use a self-proving affidavit, the will’s witnesses may need to appear in court to verify its authenticity.
A self-proving affidavit is created by having witnesses sign before a notary public, attesting under penalty of perjury that they saw the testator (you) sign the will. They also confirm that you signed voluntarily and you agreed the will contained your intentions for the disposition of your property.
If a will is self-proving, the witness signatures don’t need to be proven as part of the probate process. In most states, you can make your will self-proving by attaching an affidavit to the will.
States’ Requirements for Self-Proving Affidavits
In the following states, wills are considered self-proving (meaning witnesses won’t have to testify in court to prove the will is valid) without an affidavit as long as they meet the state’s attestation and signature requirements:
- California – under certain conditions (California Government Code § 8220)
- Illinois (Illinois Compiled Statutes § 6-4)
- Indiana (Indiana Code § 29-1-5-3.1)
If you live in Maryland, Louisiana, Ohio, or Washington, D.C., you can’t use a self-proving affidavit to validate your will. Unfortunately, your choice must go through the probate court with no exceptions.
A self-proving affidavit can be attached to your will to speed up the probate process in the remaining states.
Why Do I Need a Self-Proving Affidavit?
When a will is probated, it must be validated and authenticated. This means the heirs must go to court and provide evidence that the will’s contents are accurate, the people designated to execute the will are the ones the testator intended to be named, and the will is legitimate.
Often, the witnesses will be called to court to testify that their signatures on the will are valid and that they witnessed you sign it. This can be a problem if, for instance, witnesses have died or moved away by the time the will needs to be proved.
If your state allows you to use a self-proving affidavit, witnesses will not need to appear in court. A self-proving affidavit can also help affirm that the will’s creator wasn’t under any undue influence at the time of their signature.
While a self-proving affidavit doesn’t let you skip the probate process altogether, having one can simplify it.
How to Make a Self-Proving Affidavit
Here’s a list of step-by-step instructions to make a self-proving affidavit:
Step 1 – Gather Your Witnesses
The first step is to gather your witnesses. Some states may only require one witness, but many require you to have at least two. Ensure these witnesses are disinterested, meaning they’re not recipients of any part of your will.
Step 2 – Hire a Notary Public
Hire a notary public and meet with them, ensuring your witnesses accompany you. You can look up a licensed notary in your area or see if your financial institution provides notary services.
Have the notary public conduct the signing of the document. As the testator, you’ll sign the document and have the witnesses watch you sign it. They’ll also add their signatures. The notary public will notarize the document by adding their signature and including the appropriate seal.
Step 3 – Attach the Affidavit to Your Will
The last step is to attach the self-proving affidavit to the will so it becomes a part of the latter document.
Self-Proving Affidavit Sample
Review a sample of our self-proving affidavit form. Download the document as a PDF or Word file below:
Frequently Asked Questions
Can I add a self-proving affidavit to an existing will?
Some states allow witnesses to sign an affidavit attesting to the validity of a will without observing the testator’s signature, but most do not. Before you attempt to add a self-proving affidavit to an existing will, you should consult a legal professional to learn the specific probate rules in your state.
Does a codicil need a self-proving affidavit?
A codicil is a document added to your will that modifies or alters parts of your will but leaves other portions intact. You’re not rewriting your entire will. The codicil must conform to the same signature and witness requirements as the original will in every state.
For this reason, it is a good idea to add a self-proving affidavit to your codicil since it is considered a separate document from the existing will.
Is my will still valid without a self-proving affidavit?
Yes. However, you can still consider creating one to expedite the probate process.
