When a person who has a Last Will and Testament dies with assets titled in his/her name alone, the Will normally must be submitted to the Court in a proceeding is known as “Probate.”
As part of the Probate of the Will, the Witnesses who watched the execution of the Will sometimes must either testify in Court or sign an affidavit that it was actually their signatures on the Witness page of the Will. This can become a problem when Wills were executed many years before the person’s death. Often witnesses are deceased or difficult to locate and when they are located are inconvenienced by being ordered to appear in Court.
In New York State, there is an optional additional page that can be included with Wills called a “Self-Proving Affidavit.”
A Self-Proving Affidavit is a page where a Notary Public notarizes the sworn statement by the Witnesses that they were present for the Will signing, did sign their names as Witnesses and are of the opinion that the person signing the Will was of sound mind, under no restraint, and competent to make a Will. Normally this Self-Proving Affidavit will be accepted by the Probate Court as proof of the signatures by the Witnesses on the Will and the Judge won’t require the Witnesses to appear in Court.
It is not unusual for older Wills to be lacking this Self-Proving affidavit. Therefore, it is a good idea to periodically review your estate planning documents to see if they need to be updated.