When you create a will in Texas, witnesses must attest to it (except in certain circumstances). Those witnesses may later have to affirm the will’s authenticity during probate. However, a self-proving affidavit can make probate simpler and reduce the risk of legal challenges. A self-proving affidavit can eliminate the need for testimony to establish a will’s authenticity during probate.
What Is a Self-Proving Affidavit?
A self-proving affidavit is a document attached to a will, signed by both the testator and the witnesses to the testator’s execution of the will. The testator and witnesses must sign the affidavit or acknowledge their signatures before a notary public. In the affidavit, the testator and witnesses attest that the testator properly executed the will under Texas law.
Under Texas Estates Code § 251.104, a self-proving affidavit addresses various aspects of a will’s creation:
- The testator acknowledges to the witnesses that the document is their will
- The testator acknowledges that they voluntarily signed the will
- The testator requests the witnesses to sign the will in each other’s and the testator’s presence
- The witnesses acknowledge that the testator declared the document as their will and asked them to sign it
- The witnesses acknowledge that the testator is an adult, lawfully married, or a member of the U.S. Armed Forces or Maritime service, and that they believe the testator to be of sound mind
The Problem That a Self-Proving Affidavit Solves
During probate, the party presenting a decedent’s will to the court must prove that the document is the decedent’s true will. In some cases, witnesses who observed the will’s execution must testify in court that the document presented for probate is the decedent’s will. This requirement can create problems during probate if a witness has predeceased the decedent, moved away, or cannot be found.
How a Self-Proving Affidavit Streamlines Probate
A self-proving affidavit can streamline probate by eliminating the need for the will’s witnesses to testify in court about the document’s authenticity. Instead, the witnesses’ affidavit serves the same function as testifying in court. Although a self-proving affidavit does not make a will contest-proof, it can avoid challenges alleging that the testator did not execute the document as their will.
Adding a Self-Proving Affidavit to a Will
Although a testator and their witnesses can sign a self-proving affidavit at the same time that the testator signs their will, the testator can later attach or annex an affidavit to an existing will. A testator can also add a self-proving affidavit to a holographic will (a will written entirely in the testator’s handwriting).
If a testator amends their will through a codicil, they should also ensure that the codicil has a self-proving affidavit. Otherwise, the witnesses to the codicil may have to testify to verify its authenticity during probate.
Common Mistakes with Self-Proving Affidavits
Some of the most frequent mistakes that people make when creating self-proving affidavits include:
- Not using or deviating significantly from the statutory language for a self-proving affidavit
- Having a witness who is also a beneficiary
- Not having the notary present during signing
- Not having the testator and witnesses sign before the notary at the same time
Contact Our Estate Planning Firm Today to Learn More
Having a self-proving affidavit in your will can make it easier for your loved ones to probate your estate in Texas. Contact Guest & Gray today for a free consultation with an estate planning lawyer to learn more about the importance and benefits of including a self-proving affidavit in your will and to get legal help incorporating one into your estate plan.
