A self-proving affidavit is a sworn statement that accompanies a Will. In the case of an attested Will, the testator and all witnesses sign it in the presence of a notary.
The self-proving affidavit affirms that the testator properly signed the Will in the presence of two witnesses.
The absence of a self-proving affidavit does not invalidate a Will.
However, having a self-proved Will is beneficial because it eliminates the need for witnesses to appear in a probate proceeding to prove the Will is valid.
Proving up a Will during probate requires witnesses to testify about:
A self-proving affidavit verifies that the Will is authentic without the need for testimony during a probate proceeding. This can be can save time and expense, especially in situations when witnesses die, become incompetent, or move away.
Not every state gives testators the option to add self-proving affidavits to their Wills. The District of Columbia and Ohio do not, as I recently found out while reviewing the Will of a client who had recently moved from Ohio.
There are also a handful of other states in which simply observing the proper formalities when you and your witnesses signed the Will will result in the Will being self-proved. There is no need to add a separate affidavit.
The states that require self-proving affidavits to prove up a Will have statutes that dictate the language the affidavit should include. For example, in Texas, the statute that outlines the requirements of a self-proving affidavit is Section 251.104 of the Texas Estates Code. In North Carolina, the statute is Chapter 31, Article 4A of the North Carolina General Statutes.
If your state gives you the option to add a self-proving affidavit to your Will, do it.
This article was originally published on April 26, 2010, and updated on July 30, 2021.
Rania graduated magna cum laude from South Texas College of Law Houston and is the founder of Rania Combs Law, PLLC. She has been licensed to practice law since 1994 and enjoys helping clients in Texas and North Carolina create estate plans that give them peace of mind.
Since a holographic will has no witnesses, can (or is it necessary) a self-proving affidavit still be utilized? Thank you
Ms. Combs, in the case of the holographic will (which does not require two witnesses or notarization) does the self-proving affidavit (which you say requires notarization) require two witnesses? Thank you.
Can a person type up their own will and sign it before two witnesses and a notary public, or does it have to be hand written?
A Will that is not wholly in a testator’s handwriting should be in writing, signed by the testator, or another person at the testator’s direction and in the testator’s presence, and attested in the testator’s presence by at least two credible witnesses over the age of 14.
In Texas, does a typed last will and testament still need 2 witness signitures if the document has been notarized without the 2 witness signatures? Thanks
Yes. To be valid, a typewritten Will must be signed by the testator, or another person at his direction and in his presence, and attested in his presence by at least two credible witnesses over the age of 14. Just being notarized is insufficient. For more information read: The Requirements of a Valid Will in Texas.
Thank you in advance. Is it legal for my husband and I to have one combined will thereby leaving to each, all assets?
The following article may answer your question: Is the Will I Signed in Another State Valid in Texas?
If I leave everything to my husband do I need a executor as well?Your husband can be both the executor and beneficiary.
The witnesses have to see the person sign, right? They do not have to read the will or verify that the document being signed is indeed a will and testament, right?
The witnesses have to attest that they heard the testator say the document was his Last Will and Testament and that the testator signed the Will and wanted each of them to sign as witnesses. The witnesses do not have to read the Will.
A Will in Texas does not need to be notarized in order to be valid; however, adding a self-proving affidavit, which must be notarized, to a Will eliminates the need for witnesses to appear in a probate proceeding to testify about the validity of a Will, which saves time and expense.
Can somone who has witnessed a will signing (along with another person) also be the person who notarized the signature of the testator?
The Requirements for Self-Proving Affidavits can be found in Section 251.104 of the Texas Estates Code.
Is it necessary for the two witnesses to be present at the time the self proving affidavit is notarized by the authorized Notary?
Am trying to avoid probate. I have a legal will and TODD. Is it still necessary to have the aforementioned affadidavit ?
Lawyers include a self-proving affidavit because it eliminates the need for witnesses to appear in a probate proceeding to testify about the validity of a Will, which saves time and expense.
My mother & father in law have 15 acre land that we both live on. She wants to leave her half or share of the land to my husband and me, and my father in law can leave do what he wants with his half. They have 4 kids(adults) including my husband. I was going to have her write out whatever she wants done and then do a self-proving affidavit but can my husband and I be witness to sign it? or does she need two outside the family?
Wills and self-proving affidavits that accompany them should be witnessed to two disinterested witnesses. Please encourage your mother-in-law to consult with a lawyer to ensure her wishes are reflected.
My husband and I are making plans in case we do not survive the pandemic. Can the executor be our oldest daughter, age 15? I have no siblings and my parents are disabled. At best, we have our child’s godparents.
A minor child will be unable to serve as executor. Please stay safe and take good care of yourselves during this scary time.