Notarizing Your Will
Is your will notarized? It may be, but it doesn’t have to be. Why are wills written by lawyers almost always notarized? It is not the will itself that is notarized, but rather the “self-proving affidavit” that is attached to the will.
When a person’s will is presented for probate after the person’s death, the will must be “proved.” The word “probate” comes from the Latin probare, meaning to test or to prove. In probate, we are “proving” the will.
Proving a Will
Proving a will means that a witness to the will gives testimony to the appropriate state government official that (s)he witnessed the signing of the will. In some states, this is the Register of Wills, and in some, it is a clerk of the Probate Court or the Surrogate’s Court. Obviously, if a will was signed many years ago, it may be difficult or impossible to locate the witnesses.
They may be deceased, have moved away, or be incapacitated and not able to give testimony. In some states, if all heirs and persons interested consent, the will can be accepted without being “proved.” In other states, the witnesses are not available; the will can be “proved” by the testimony of two persons who did not witness the will, but who can identify the decedent’s signature on the will. These witnesses are called “non-subscribing witnesses.” They were not present when the will was signed, and they did not subscribe their names to the will as witnesses.
Looking for witnesses and getting them to the Register of Will’s office can be difficult and burdensome to those involved. The need for external proof requires sworn testimony by knowledgeable parties familiar with the signature in question. Remember, because most folks die when they are old, people who can credibly verify signatures may be incapacitated, dead, or “living in Florida.”
Self-Proving a Will
Almost all of the states now have statutes authorizing self-proving wills. Only Maryland, Ohio, Vermont, and The District of Columbia do not. Of the states who do have statutes authorizing self-proving wills, not all are the same. A will that is self-proving in one state may not be self-proving in another. Some states require the notarization of the signatures of the witnesses only, while some states require the notarization of the signatures of the testator and the witnesses.
Self-proving statutes provide a procedure where the will can be proved at the time it is signed. The person making the will and the witnesses take an oath before a notary public at the time the will is signed. If this is done, then no witnesses must “prove” the will after death. The will is simply filed, the Register of Wills notes that self-proving affidavit and no witness testimony is required. Isn’t that much easier?
In some jurisdictions, if a notary is unavailable and an attorney is present, the attorney can take the oath and can subsequently make the certification to a notary. If this is the case, it is important for the form of affidavit to make it clear that the attorney took the oath and also appeared before a notary.
While a will is still valid without the self-proving affidavit, it is now the standard practice to make a will self-proving. Sometimes it is difficult to arrange for the presence of a notary at the time the will is signed, but a little extra effort at this point can save your beneficiaries much more trouble and expense later.
Adding a Codicil
Is lack of “self-proof” grounds for creating a new will? No, there is no need to go to the expense of creating a new will just to add a self-proving affidavit. However, if you are making a new will, it is highly recommended that it be self-proving. It is possible to make an old will self-proving by adding a codicil. Since the codicil makes changes to a will and reaffirms the parts that aren’t changed, the will is “republished” by the codicil. Thus, the self-proving codicil also proves the will. I have found as a practical matter that the Registers of Wills do not view this matter in the same way.
But, to be safe, instead of adding a codicil, complete a new will with a self-proving affidavit attached.
A little front-end work on your will can make a world of difference to the executor in getting the will accepted as genuine by the court system. Most of us are fond of the executor we named, so do that person a small favor in return for the significant effort that will be expended in settling your estate. Have a notary eliminate the signature problem before it occurs.