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How Do You “Prove” a Will is Valid?

After your death, your will provides an estate planning roadmap for distributing your property to your chosen beneficiaries. You may be wondering how a probate court will know whether or not a particular document is actually your will. In other words, how does one go about proving a will is valid?

California, like all states, requires a will to be signed in the presence of at least two witnesses. The reason for this is to maximize the chance that at least one person—one of the witnesses—will be available to authenticate the will as valid should a dispute arise. Of course, since you may sign your will years (or decades) before your death, what happens if the witnesses are difficult to locate or unavailable?

One solution is to incorporate a “self-proving affidavit” into the will. This is a notarized document signed by the person making the will, together with the witnesses, in which they all affirm, under penalty of perjury, that the accompanying will is genuine. Most states will accept such an affidavit as proof of a will’s validity without the need for live witness testimony.

California does not necessarily require such an affidavit: the will itself may contain an “attestation” clause where the witnesses affirm the will was signed in their presence on the date specified. This attestation clause does not need to be notarized, although it can be.

Notarization is Not a Substitute for Two Witnesses

It is important to understand, however, that notarizing a will is not sufficient on its own to make it valid or self-proving. A notary can only authenticate an affidavit or declaration, not a will. And as explained above, a will requires at least two witnesses.

And if you do choose to have your will notarized, make sure the notary is not also one of the witnesses. A number of states have said held a person can be a notary or a witness, but not both. (A notary, after all, cannot authenticate his or her own signature.) Just recently the Wyoming Supreme Court addressed such a case. A will submitted for probate was witnessed by two people, including a notary who also notarized the document. Neither witness could recall actually signing the will. The Wyoming court said the will could not be “self-proving” in this case because the notary improperly authenticated her own signature. The will itself may still be proven valid, however, based on other evidence of its “due execution.”

Likewise, California law provides a will can be proven even without an affidavit or attestation clause. For example, a probate court can still admit a will if one of the witnesses is available to testify as to its authenticity. The court may also look at “proof of the handwriting” of the person making the will or an “affidavit of a person with personal knowledge of the circumstances of the execution.”

Need Advice from an Estate Planning Lawyer?

While the requirements for proving a will are not onerous, they must be followed to the letter in order to avoid potential problems down the road. That is why you should never make a will without consulting a qualified San Diego estate planning attorney. Contact the Law Office of Scott C. Soady today if you would like to speak with an attorney about your estate planning needs.

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