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  • Writer's pictureBenjamin Inman

What is a Self-Proved Will

What is It? Let’s start with the basics. A “will” is a legally enforceable document that specifies how a person (the testator) wants their assets (including real estate) to be distributed after their death. A will can also be used to make provisions for dependents who are left behind, such as specifying a guardian for minor children and/or pets. You can learn more about what a will is here. .

A “self-proved will” is a will that has the added benefit of having signed affidavits (documents of sworn, truthful testimony, as witnessed by a notary public) which lend credence to the will. It is far easier to prove that a self-proved will is valid in probate court. You can learn more about probate court here. Note that not every state allows self-proved wills, even though the majority of states do. At the time of writing, the District of Columbia, Maryland, Ohio, and Vermont did not allow self-proving wills.

How do you establish one? A self-proved will is essentially a will with an extra step, which is to create and attach a self-proving affidavit. An “affidavit” is a sworn, written statement, signed in front of a notary public. In the case of a self-proved will, the witnesses to the signing of the will sign an affidavit that says: they saw the testator sign the will, the testator told the witnesses that this was their will, the testator appeared to have the mental capacity to create a valid will, and the testator appeared to be acting of their own free will. In Virginia, Virginia Code § 64.2-452 and 453 provide the language to be used: Va. Code § 64.2-452; Va. Code § 64.2-453. Usually, the self-proved affidavit is signed immediately after the witnesses watch the testator sign their will, though some jurisdictions will accept one that was signed later.

How does it work? At the time a will is signed, the witnesses who watch the will-maker (testator) sign the will then swear to that by signing an affidavit. In most states, a notary public must witness the signing of a self-proved affidavit in person. That way, after the testator has died, the witnesses will not need to come to court and testify that they watched the testator sign the will - the self-proving affidavit essentially testifies on their behalf. There’s no need to track down the original witnesses, march them before a probate judge, and have them testify on the witness stand. It can become especially hard to track down witnesses the more time that has passed between the signing of the will and the testator’s passing - witnesses may relocate far away, die, or be otherwise unable to come to court to testify.

Do I need one? The short answer is “yes,” if your jurisdiction allows self-proving wills, then you should have a self-proved will. It is in your beneficiaries’ best interests that you have a valid will. And a valid will is easier to probate with a self proved affidavit. Additionally, your jurisdiction’s procedures for when someone dies intestate (without a will) may not align with your wishes.

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