In order for a Will to be valid in New York, there are certain conditions that must be met. These conditions include the Will being signed by the testator, which is the person creating the Will, as well as the Will being witnessed and signed by two witnesses who confirm the testator’s signature. In Surrogate’s Court, a Will is authenticated when a person dies, and the estate is then administered.
A self-proving Will saves your witnesses time and inconvenience by not requiring a court appearance to reaffirm the Will. It also provides an additional layer of authentication that can help your beneficiaries avoid a long, drawn out probate process. A self-proving Will can be particularly helpful when one or more of your witnesses cannot be located or they have since passed away.
A self-proving Will, or a self-proving affidavit attached to a Will, simply certifies that the witnesses and testator properly signed the Will. The self-proving affidavit acts as a substitute for the witnesses’ live testimony. The affidavit has the same function of the witnesses’ testimony, it is evidence of personal knowledge, and because the witness swears an oath, the affidavit is presumed to be truthful. In a self-proving affidavit, each witness swears an oath and signs an affidavit that recites the statements that they would make in court were they called to testify. These statements normally refer to the capacity of the testator, as well as the signature requirements. The self-proving affidavit is normally signed at the same time as the signing and execution of the Will.
The laws that govern estates, trusts and Wills are very specific, and they differ from state to state. It is important that you work with a qualified estate planning attorney in your state of residence to not only make sure that your documents are valid and legal, but to ensure that your family’s needs and goals are met.
Michael Robinson, Estate Planning Attorney
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