Many people ask, ‘Does a will need to be notarized?’ when considering estate planning. Understanding the importance of notarization and self-proving affidavits is crucial to ensure that your wishes are carried out and your assets are distributed according to your intentions after your passing.
Simply signing your will in the presence of witnesses may not be enough to prevent your heirs from going through costly and time-consuming legal hurdles to get their inheritance. However, there are additional steps you can take to ensure that your wishes are carried out smoothly after your passing. This is where notarization and self-proving affidavits come in.
In this article, we will discuss the significance of notarizing your will and obtaining a self-proving affidavit. We will also explore the variations in notarization requirements across states.
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 and testament, this document proves that your witnesses saw you sign your will.
While the witness section of a will can also serve this purpose, a self-proving affidavit provides an additional layer of protection. Witnesses may pass away or become unreachable over time, and their absence can cast doubt on the legitimacy of the document. Adding a self-proving affidavit removes this worry, as it establishes beyond a shadow of a doubt that your witnesses saw you sign your will.
How to Obtain a Self-Proving Affidavit
Unlike your last will and testament, a self-proving affidavit requires notarization. After completing your will, contact your witnesses and tell them about the affidavit and the need for notarization. Choose 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 and testament and the affidavit. Following that, the notary will sign their portion of the document to complete the process.
What if Your Current Will Isn’t Self-Proving?
If you’ve already filed a last will and testament and 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, and a notary public will have to notarize it.
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, going through these steps can make it less likely for a judge to rule the will invalid. What if there are two similar wills, and only the older one has a self-proving affidavit? The judge is likely to favor the newer will.
Witnesses to the will also play a crucial role in providing evidence and clarity related to the distribution of assets. Their testimony can assist the judge in making an informed decision in such cases.
State-by-State Differences in Notarization Requirements
While most states have provisions that allow for self-proving affidavits, regulations governing them can vary from state to state. For example, the District of Columbia and Ohio don’t allow them, and witnesses will need to verify your document in probate court no matter what. In these states, notarizing your will can provide additional protection.
On the other end of the spectrum, getting a self-proving affidavit is unnecessary in California, Indiana, Nevada, Illinois, and Maryland. In these states, the signature of witnesses is inherently self-proof, so witnesses do not need to testify in probate court.
Understanding Notarization & Self-Proving Affidavits
In conclusion, understanding the importance of notarization and self-proving affidavits in estate planning is crucial to ensure that your wishes are carried out and your assets are distributed according to your intentions after your passing. “Does a will need to be notarized?” is a common question, and notarizing your will and obtaining a self-proving affidavit can provide an additional layer of protection. While it may require some additional effort and expense, it can ultimately save your heirs time and money in the long run. Make sure to consult with a legal professional to ensure that your last will and testament meets all the requirements in your state, including notarization if necessary, and consider adding a self-proving affidavit for added protection.
