Why Should My Will Include a Self-Proving Affidavit?
I received a note from someone who said he had gone to court to probate his grandparents’ Wills.
His grandparents signed their Wills in the presence of two witnesses; however, the Wills did not include self-proving affidavits. Consequently, the judge told them that the witnesses had to appear in court to prove the Will was valid.
Unfortunately, one of the witnesses who signed his grandparents’ Wills had died. The other lives out of state. As such, proving up the Will may be more difficult and expensive if the Will had included a self-proving affidavit.
What is a Self-Proving Affidavit?
A self-proving affidavit is a sworn statement that witnesses and the person making a Will (the testator) sign in front of a notary public. It constitutes presumptive evidence that the testator signed the Will in accordance with state laws.
What Information Should it Contain?
Section 251.1045 of the Texas Estates Code provides the specific language that will make a Will self-proved. It requires that any self-proving affidavit “substantially” match the statutory language.
The self-proving affidavit requires the person making the Will (the testator) to declare to the notary and the witnesses that:
- the Will is the testator’s Last Will and Testament, and
- the testator willingly made and executed it as the testator’s free act and deed.
Additionally, the witnesses must state in the presence of the testator, that the testator declared to them that the document was the testator’s Last Will and Testament, and that the testator signed it and wanted each of them to sign as witnesses, and that they did sign the Will as witnesses in the presence of the testator and at the testator’s request, and that at the time:
- The testator was 18 years or older (or if he/she was younger, was or had been lawfully married, or was a member, of the armed forces of the united states, or an auxiliary of the armed forces of the united states, or the united states maritime service);
- The testator was of sound mind; and
- Each of the witnesses was at least 14 years of age.
Can I Add a Self-Proving Affidavit to an Existing Will in Texas?
The testator and witnesses can sign a self-proving affidavit on the date the testator signs the Will. They can add sign a self-proving affidavit any time after that before the testator dies. If the Will does not include a self-proving affidavit and the testator wants to add one at a later date, the testator and all Witnesses must sign the self-proving affidavit in front of a notary.
It is possible to probate a Will that contains a self-proving affidavit without the need for sworn testimony and affidavits, which can save a lot of time and expense.
This article was originally published on May 16, 2018, and updated on August 3, 2021.