Odds and Ends

Why Should My Will Include a Self-Proving Affidavit?

by Rania Combs

I received a note from someone last week who said he had gone to court for the purpose of probating his grandparents’ Wills.

His grandparents signed their Wills in the presence of two witnesses; however, the Wills did not include self-proving affidavits. As a result, the judge advised that it was necessary for the witnesses to appear in court to prove the validity of the Will.

Unfortunately, one of the witnesses who signed his grandparents’ Wills is now deceased. 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.

A self-proving affidavit is sworn statement signed in front of a notary public by the person making a Will and his or her witnesses. It constitutes presumptive evidence that the Will was executed properly.

Section 251.1045 of the Texas Estates code provides the specific language that will make a Will self-proved, and 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, that 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:

  1. 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);
  2. The testator was of sound mind; and
  3. Each of the witnesses was at least 14 years of age.

A self-proving affidavit can be made at the time a Will is signed, or 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.

A Will that contains a self-proving affidavit can be admitted to probate without the need for sworn testimony and affidavits, which save a lot of time and expense.

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