If an estate contains assets solely titled in the Decedent’s name, those assets must first pass through the Probate Court process before they can be retitled in a beneficiary’s name. If a Will exists, the Probate Court tests the validity of that Will as an initial step in this process. This initial step is commonly referred to as the authentication of a Will.
How do probate courts authenticate a Will?
The Court checks to see if the Will contains the proper execution formalities. Did the Decedent sign it? To determine this, the Court relies on witnesses. If you have executed your own Will, you may recall two witnesses watching you sign it. The Court may call these witnesses to provide testimony that the Decedent signed the Will and was of sound mind at the time the Will was signed.
Obviously, this can become a time-consuming process. In some cases, the witnesses may be difficult to find, or may no longer be alive. Hence the use of a self-proving affidavit.
The self-proving affidavit takes the place of live witness testimony and allows the Court to authenticate the Will. When examining a Will, make sure the signature pages also contain a notarized document containing the signatures of the witnesses and attests to their presence at the time the Will was signed.
In the absence of a self-proving affidavit, witnesses may have to come forward and provide an official statement that they witnessed the signing of the Will to authenticate it.
Takeaway
If you find a Will that lacks a self-proving affidavit, you should contact a probate attorney for advice on how to remedy this before it’s too late. If the Court cannot authenticate the Will, it may be declared invalid and the Decedent’s estate may be passed through intestate laws, rather than his/her wishes. Contact CASHMAN LAW today for a free consultation to see how we might help in reviewing and updating your plan.
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