Self-Proving Wills

What is a self-proving will? It is one "simultaneously executed, attested, and made self‑proved, by acknowledgment thereof by the testator and affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of the state in which execution occurs and evidenced by the officer's certificate, under official seal." Uniform Probate Code § 2‑504(a). Essentially, a last will is made self-proving by execution by the maker (together with the witnesses) in front of a notary who acknowledges the document with his or her seal.

How is a self-proving will different than a normal last will? "A self‑proved will may be admitted to probate * * * without the testimony of any subscribing witness, but otherwise it is treated no differently from a will not self proved." See Comments to §2-504 of the Uniform Probate Code. We are a mobile society. What a self-proving will does is eliminate the need to tract down the witnesses and get affidavits in order to probate the will. If the witnesses predeceased the testator (testatrix), more headaches. The bottom line behind taking the extra step involved with a will self-proving is to make the probate process as ease as possible for your family at death.

What happens if a will is not made self-proving? As an example, below is the Missouri Probate Code section setting forth the rules for admitting a last will to probate that has not been made self-proving:

§ 473.053. Testimony of subscribing witnesses, other evidence.
  1. At least two of the subscribing witnesses to a written will shall be examined if they are alive and competent to testify and otherwise available. Before any will is probated each of at least two witnesses thereto shall testify to facts showing that the will was executed in accordance with section 474.320, RSMo. This section does not alter the rules of evidence as to the establishment of a will by probate in solemn form or affect the probate of a self-proved will.
  2. If either or both of the subscribing witnesses to the will are dead, physically or mentally incapable of testifying, or their whereabouts unknown, then due execution of the will by testator and its attestation by subscribing witnesses shall be proved by the available subscribing witness, if any, and proof of the handwriting of any dead or mentally incapacitated subscribing witness or subscribing witness whose whereabouts is unknown, or by such other competent evidence as is available.

The real danger is if one of the witnesses cannot be found, is dead, or mentally incompetent at the time the will is ready for presentation to the court for probate. Then you are looking at not only time to prepare the necessary evidence for probate of the will but also increased estate administration expenses. The attorney fees meter runs at a rapid rate while the necessary testimony and other evidence is collected.

The MedLawPlus.com® Last Will and Testament Form is a fast and economical solutions for those wishing to create a simple will ($13.99, free trial). It can be used to create self-proving wills (USA only).