When you sign your Will at Peach State Wills and Trusts, there will be two witnesses in the room with you. The role of these individuals is to witness you sign your Will and sign it themselves as witnesses. In addition, the witnesses also sign a self-proving affidavit along with you. This affidavit is then attached to your Will, and while is not an official component of the Will, its inclusion will make the process much easier for your Executor when the time comes to take your estate to probate. Here's how it works…
What is an affidavit?
An affidavit is essentially the written version of swearing an oath. In the case of the self-proving affidavit, the document is signed by the testator (person creating the Will), the two witnesses to the signing of the Will, and a notary public. The affidavit should follow the template laid out in Georgia law.
What does the self-proving affidavit mean?
By signing, each party swears or affirms the following…
- The Testator swears that he has declared the document to be his last Will and Testament, that he or she signed it as a free act and deed in the presence of two witnesses, that he or she is 14 years of age or older, and that he or she asked the two witnesses to sign the Will.
- The Witnesses swear that they witnessed the testator sign the Will, that they signed the Will as a witness, they affirm the testator declared the Will to be his or her last will and testament made as a free act and deed, and that the witness is 14 years of age or older.
- The Notary acknowledges that the testator and witnesses swore or affirmed those items and that they each signed the affidavit.
Why do I need a self-proving affidavit?
Part of the probate process is proving the validity of the execution of your Will. With the inclusion of a self-proving affidavit, signed by you, two witnesses, and a notary public, your Will is presumed to have been executed properly in accordance with the law, and is therefore admitted by the probate court—hence the name ‘self-proving.' The court takes this document as evidence that your Will was executed properly, with no need to locate a witness and have him or her provide testimony to the court that the Will was properly executed. This saves time, energy and money.
What if I don't have a self-proving affidavit?
The self-proving affidavit has not always been standard, and as such some older Wills do not have one. If this is your situation, don't worry—this does not mean your Will is invalid. However, it does mean that proving the validity of your Will in probate court may be more difficult.
Without the affidavit, the witnesses to your Will would need to be brought before the court to testify to its validity, either in person or via an affidavit. Finding these witnesses can prove to be a challenge—after so many years, they could have moved, become incapacitated, or passed away. If the original witnesses cannot be located, the Executor may bring two disinterested persons who knew the Testator before the court to examine the Will and testify that they believe the signature is in fact that of the Testator. The Executor may also be required to present evidence of his due diligence in locating the original witnesses.
If your Will does not have a self-proving affidavit, we recommend adding one to prevent a potential headache for your Executor down the road if at all possible. Give Peach State Wills and Trusts a call at (678) 344-5342 and we will help you determine the next steps. If you have other questions about self-proving affidavits, or estate planning in general, you can find a wealth of information on our blog and YouTube channel, or request our free Guide to Estate Planning.