You may have heard many people talk about getting a notary public to witness the signing of their Last Will and Testament document. While this is not a requirement for executing a will in New York State, it is definitely recommended to have one. This is because, for one, having a notary public means that a self-proving affidavit will get attached to your will. With that being said, please follow along to find out the purpose of a self-proving affidavit and how a proficient New York City wills attorney at Zimmet Law Group, P.C., can help your will document become as effective as possible.
What is a self-proving affidavit for a will document?
Essentially, a self-proving affidavit is a sworn statement signed by the witnesses of a will, usually at the same time the will is signed and executed by you (i.e., the testator). Of note, New York State estate law requires at least two witnesses to be present at your will signing. They must sign this legal document themselves within 30 days of your signature, along with providing their residential signatures. They must be disinterested parties without a stake in your will’s outcome, at least 18 years old, and with an undoubted mental capacity.
Putting that to the side, this affidavit can only be made before a notary public. This is an impartial third party that confirms that you signed the legal document willingly and voluntarily, you were of sound mind at the time of signing, you had two witnesses present at the time of signing, and that your two witnesses signed the legal document in the presence of each other and you. Basically, they assure the New York State Surrogate’s Court that you took all the measures necessary to make your will passable through probate.
Can a will be contested without a self-proving affidavit?
To reiterate, New York State estate law does not mandate that a self-proving affidavit be attached to your Last Will and Testament document. Although if you do not have one, the Surrogate’s Court is expected to call on the two witnesses who were present at your will signing. Your witnesses may then have to appear in person before the court and testify about how you executed the will validly.
Of course, this is an inconvenience that may delay the probate process for your will, especially if your witnesses cannot be located or if they have since passed away. Even worse, without the assurance that a self-proving affidavit provides, your beneficiaries or other interested parties may question if you executed your will correctly. Their concerns may drive them to contest the will. Here, they may make one of the following arguments:
- There is no proof that you were the one who provided your own signature at the bottom of the document.
- There is no proof that your two witnesses did not exercise undue influence to get you to sign the document.
- There is no proof that you knew what legal document you were signing and its serious implications.
- There is no proof that your two witnesses did not alter your will’s contents before signing the bottom.
Before you start your will preparation, you must seek a talented New York City estate planning attorney to stand by your side. Please contact our office, Zimmet Law Group, P.C., as soon as you are ready.
