While it is always a good idea to seek legal advice when preparing your will, there are options for writing your own and making sure your wishes are carried out when the time comes. When discussing a will, there are several terms to be familiar with, including:
- Assets: all possessions solely owned by the decedent. The assets are part of the decedent’s estate, but the estate also includes other things of value.
- Decedent: the deceased person who wrote the will or had a will drafted.
- Estate: all of the decedent’s assets, including those of value and interests or entitlements the decedent may have had.
- Executor: a person, usually appointed, or named, by the testator in the will or court during the probate process, to manage the testator’s estate.
- Notary, or Notary Public: a person the state authorizes to be a witness on official documents. In some states, notaries are also attorneys.
- Probate: the legal process of determining how the decedent’s assets will be handled. This often occurs in Probate Court.
- Testator: the person writing the will or having the will written to cover their property and assets.
If you would like to prepare your own will, you can do this by writing a handwritten will, also called a holographic will, or by typing up your own will. Handwritten wills usually do not require witnesses to confirm the will is valid, but the court may request testimony that the handwriting belongs to you during the probate process.
States have different requirements for handwritten wills, but generally these need to be entirely handwritten by the testator, dated and signed to be considered valid.
For a typed will or a will that is partially handwritten and partially typed, the court will most likely need additional information in the probate process to confirm the will belongs to you.
A will alone will not be considered valid and the court will need additional evidence to prove that the will provided during probate is, in fact, the will of the decedent. You can assist the court and help prevent confusion by having a self-proving will.
A self-proving will is one where two witnesses have signed a sworn statement, called an affidavit if it is notarized, about the will being valid and meeting the legal requirements for the court to enforce it.
In some states, the courts require that this statement be sworn before a notary public, in which case the statement becomes an affidavit, while other states only require the written and signed sworn statements of the witnesses. If you are unsure whether your state requires a notary, it would be best to ask an estate attorney.
Whether your self-proving will needs to be notarized or not will depend on the state you live in. To be safe, it would be best to consult an attorney or have your will and the sworn statements of the witnesses notarized. The sworn statements of the two witnesses should include:
- A declaration by the witness that the testator told the witness it was their will;
- A declaration by the witness that the testator willingly wrote the will and was not pressured by anyone, especially the witness, to make the will;
- A declaration by the witness that the testator told the witness they wanted the witness to sign their will as a witness;
- A declaration by the witness that the testator was at least 18 years old and of sound mind when they wrote the will; and
- A declaration by the witness that the witness was of legal age, usually 18 years old, to sign as a witness.
These declarations can be set out individually or combined in a paragraph as long as it meets all of the requirements. If you are not comfortable writing the sworn statement, it is best to find a local attorney to do this for you and have peace of mind.
If your state requires self-proving wills to be notarized, there are best practices to keep in mind for having the will and statements notarized. These include:
- The testator and both witnesses should appear before a notary with an unsigned will and sworn statements;
- The testator and both witnesses should have valid identification, such as a Driver’s License, to present to the notary; and
- The testator and both witnesses will then sign the will and sworn statements before the notary and the notary will sign in their official capacity.
Remember: there is usually a nominal fee for notary services. You may want to check with the notary before arriving to determine what the fee may be and what methods of payment are accepted for notarizing the will and sworn statements.
Although a self-proving will is accepted in most states, the best way to ensure your will is accepted by the probate court and your assets are handled the way you want is to consult with an attorney. A local estate lawyer will be able to quickly identify the best option for you and assist you in making sure your wishes are carried out.