A self-proving affidavit is a legal document that helps establish the authenticity of your last will and testament. Self-proving affidavits are often simple to execute. However, done right, they can offer significant advantages in probate, making it easier for your loved ones to reflect on your legacy without having to take repeat trips to court.
Here, the attorneys at Landskind & Ricaforte Law Group, P.C. discuss self-proving affidavits in New York City and their benefits.
Self-Proving Affidavits, Probate, and Estate Planning
Your estate plan is a set of written instructions detailing the terms of your legacy. Estate plans vary in their complexity; however, they are generally intended to serve a similar purpose: ensuring that your wishes are respected after your death. One of the most common estate planning tools is the last will and testament, used to nominate guardians, detail certain health care preferences, and direct the transfer of assets during probate.
As a general rule, assets distributed by the terms of a will must go through probate before they can reach your heirs and beneficiaries. Probate, the formal and court-administered process of dissolving a deceased person’s estate, is time-consuming and occasionally complex. But, before proceedings can begin, your executor must submit your signed, original will to the county probate clerk for authentication.
Your executor must typically choose either of the two options to authenticate or prove a last will and testament:
- Obtain witness testimony. Most wills are only valid if they are signed in the presence of at least two witnesses, both of whom must be of sound mind and over the age of 18. During probate, your witnesses will be asked to testify that you signed your will free from coercion or other disqualifying conditions. To obtain this testimony, your executor must locate each witness and either mail them paperwork or request their physical presence in court.
- Present a self-proving affidavit. A self-proving affidavit is an addendum to a last will and testament. It is executed before the testator’s death, often shortly after an original will has been written. Both witnesses sign the self-proving affidavit, which can, in turn, be substituted for in-court testimony.
In New York, self-proving affidavits are not required by law; they are entirely elective. Your loved ones will still be able to initiate and complete probate without a self-proving affidavit, provided that your witnesses testify to your will’s authenticity.
However, self-proving affidavits provide an obvious advantage: by ensuring that your will is legitimate and free from legal error, you can effectively eliminate allegations of forgery, coercion, and debilitating mental illness, all of which are among the most common causes of probate contests and litigation.
Even if you’re confident that your estate isn’t likely to face risk in the form of predatory creditors or disgruntled heirs, having a self-proving affidavit also makes life easier for your family—by minimizing the delay posed by locating witnesses, your probate case may be resolved much more quickly.
Incorporating a Self-Proving Affidavit Into Your Estate Plan
Self-proving affidavits are relatively simple documents but are still subject to stringent legal requirements. Foremost among these requirements is having a last will and testament free from any disqualifying errors. Before your will can be considered valid, you must typically sign it in the presence of at least two witnesses.
After your will has been successfully executed, you can ask your witnesses to sign a self-proving affidavit. Your affidavit must contain certain elements and phrases before it can be legally enforced. These include, but are not necessarily limited to, the following:
- Your affidavit must confirm the date and the location of your original will’s execution.
- Your affidavit must state that the witnesses observed you execute your will in their presence, and that they too signed it as witnesses.
- Your affidavit must state that you could read the language in which the will was written.
- Your affidavit must state that you had no physical or mental health conditions that could impair your ability to understand that you were signing a will and making decisions about the distribution of your estate.
Self-proving affidavits must be notarized, and they should immediately be placed or kept in close proximity to the original last will and testament. Once you pass away and probate begins, your executor can present the self-proving affidavit in place of witness testimony.
3 Risks of Leaving Your Last Will and Testament Unprotected
You don’t have to attach a self-proving affidavit to your last will and testament, but leaving your estate plan unprotected can come with big risks. Some of the biggest risks include, but are by no means limited to, the following:
1. Your Executor Can’t Find Your Witnesses
One of the first steps in the probate process is the authentication of your will. In general, authentication must occur before probate can be formally initiated. Without a self-proving affidavit, the court will almost certainly ask your witnesses to testify to the validity of your last will and testament.
However, if your executor can’t find your witnesses, your will could be much more susceptible to legal challenges. In a worst-case scenario, your will could be found invalid—leaving your estate at the mercy of the court to be redistributed under the rules of intestacy.
2. Creditors or Angry Heirs Challenge Your Will
Your executor must send a notice of probate to every person who could be considered an “interested party” to the redistribution of your estate. Interested parties don’t just include the heirs you’ve named in your will—they include creditors, disinherited children, and estranged relatives, too.
If any of these parties doubts the authenticity of your will or has questions about your mental state at the time it was signed, they could have standing to file a lawsuit against your estate. Even if the lawsuit is quickly dismissed, your executor will have to use your estate assets to fund a defense.
3. You Make a Mistake but Aren’t Around to Fix it
Self-proving affidavits aren’t complicated documents, but they only work when everything else in your estate plan is error-free. Other mistakes, like forgetting to update your will after a divorce or leaving an ambiguous phrase in a codicil, could have drastic consequences, potentially invalidating portions of your will or thrusting your loved ones into intestacy proceedings.
You don’t have to take chances with your legacy. Landskind & Ricaforte Law Group, P.C. has spent years helping families in Brooklyn and across New York City protect their loved ones from uncertainty. Our experienced team of estate planning lawyers could help you:
- Create a new estate plan
- Review and revise an existing estate plan
- Ensure that your last will and testament is free from any legal errors
- Assist you or your executor in locating witnesses for probate
- Draft and execute a self-proving affidavit for your last will and testament