Nothing to Prove: Making the Case for Self-Proving Affidavits

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November 15, 2022

In the beginning of the COVID-19 pandemic, I wrote a blog post on how to create a valid will in Wisconsin.  At the time, we were all stuck at home by government order, and many clients signed their wills without a notary public.  Signing a will without a notary public was a short-term fix during a challenging time, not best practice.  Now that we have resumed business as usual, we recommend that you should ensure your will is signed in accordance with best practice.

Last week, I briefly explained in this vlog the importance of an optional formality in signing your will, called a “self-proving affidavit,” that will make the process of administering your assets easier for your loved ones after your death.  In this blog post, I will provide more information regarding self-proving affidavits.

To make a valid will in Wisconsin, you must be at least 18 years of age and of sound mind.  A will must be in writing and signed in accordance with certain formalities:

  1. You sign the will yourself or with the assistance of another person, or you direct another person to sign the will in your conscious presence.
  2. Two witnesses sign the will, either within a reasonable time after you sign the will or after you acknowledge to the witnesses that you signed the will.

A notary public is not required to create a valid will.  You can see why many clients signed their wills in accordance with these minimum formalities in the beginning of the COVID-19 pandemic.  Now, however, most clients prefer to sign their wills with a self-proving affidavit, which requires a notary public.

The self-proving affidavit is a single-page attachment to your will.  In the self-proving affidavit, you and the two witnesses make sworn statements in the presence of a notary public, and the notary public acknowledges the signatures of you and the witnesses.  The sworn statements include:

  • The document is your will.
  • You voluntarily signed the will, alone or with assistance, or you voluntarily directed another person to sign the will in your conscious presence.
  • You are at least 18 years of age and of sound mind.
  • Nobody is forcing you to sign the will or inappropriately influencing you to sign the will.

Most clients sign self-proving affidavits simultaneously with signing their wills.  However, the self-proving affidavit is not required to be signed simultaneously; it may be signed by you and your witnesses at any time after you make a valid will.

It is best practice to sign a self-proving affidavit.  If your will does not include a self-proving affidavit, your loved ones will need to “prove” your will after your death before it can be admitted to probate.  To prove your will, at least one of your witnesses needs to testify to the same statements that are included in a self-proving affidavit at a court hearing.  If neither witness is available to testify, the court will hear testimony from others who may have relevant information, and the court will decide whether your will may be admitted to probate.  However, if your will includes a self-proving affidavit, your will is generally admitted to probate without a court hearing and without any testimony or other evidence.  The self-proving affidavit makes probate a lot easier for your loved ones after your death.

If you have any questions regarding self-proving affidavits, please feel free to contact any attorney on Ruder Ware’s Estate Planning Team.

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Disclaimer

The content in the following blog posts is based upon the state of the law at the time of its original publication. As legal developments change quickly, the content in these blog posts may not remain accurate as laws change over time. None of the information contained in these publications is intended as legal advice or opinion relative to specific matters, facts, situations, or issues. You should not act upon the information in these blog posts without discussing your specific situation with legal counsel.

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