Wills are legal documents that provide instructions about how a person’s property is to be distributed when they pass away. These are important documents, as they can often dictate which people may receive a property inheritance (the “beneficiaries”), and which people might not. Wills might also contain specific instructions regarding certain pieces or items of property, like a valuable heirloom or money from a specific bank account.

To be valid, a will must usually meet certain requirements. These may differ from state to state, as each state has its own laws regarding wills. The requirements usually involve issues such as signing and dating the will, having it witnessed, and other requirements depending on the jurisdiction. Some wills, called “self-probating wills” may help address these various will documents in a more efficient way.

What is “Probate”?

Probate is the legal process that establishes the validity of a will of a person’s will and makes sure that the contents of the will are carried out. This probate process starts when a person with the will passes away. Once the probate court confirms that the will is valid, the court will distribute the decedent’s property in accordance with the will.

Probate courts may also handle other matters. For instance, if there is a will contest or a dispute regarding any aspect of the will, then the probate court may be required to help resolve such disputes.

Are Witnesses of a Will Called Upon During Probate?

Generally, a valid, written will must be signed in front of proper witnesses. The witnesses ensure that: 

  • The person making the will is, in fact, the person the will claims to apply to; 
  • The person appears to be of sound mind; and 
  • There is no evidence of duress, fraud or other undue influence in the process.

When a will goes to probate (when the person dies), these witnesses sometimes need to be called into court for various reasons. For instance, they may need to confirm that they were present when the will was signed, and that everything they have to attest to as witnesses to a will is true. However, it can sometimes happen that these witnesses die, or become difficult to locate long before a will enters probate.

What is a “Self-Probating Will”?

To avoid the issue of not being able to locate the proper witnesses, a self-probating will can be used instead. In order to do this, when a will is drafted, the witnesses can simply attach affidavits to the document. The affidavits will confirm that they were there, and attest that they were present, and state that all the requirements for a valid will were met.

Thus, self-probating will makes it much easier for a court to authenticate a will in the event that the witnesses are deceased or cannot be found.

What are Some Other Issues You Can Avoid with a Self-Probating Will?

Besides the issue of witness availability during the probate process, various will issues and disputes can arise. These may need the assistance of an attorney to help resolve the dispute in a fair manner. Some common will issues or disputes may include:

  • Disputes Over Property: Some beneficiaries may have disputes over certain items of property. This is quite a common dispute, especially when it comes to family heirlooms or other valuable items. This can often arise if there is any unclear language in the will document.
  • Disputes Over Beneficiaries Listed: Sometimes, family members may dispute the inclusion of certain people in a will document. They may attempt to have the persons excluded from distribution of property or monetary funds. These also can be complex and may be from an unclear writing of the will.
  • Disputes Over the Executor: The executor is the person named in the will to handle and manage the distribution of property after the person’s death. They will also manage other duties, such as paying off any final taxes or debts from the person’s estate. 
    • In some cases, the executor might not fulfill all their duties, or they might even commit a violation with regard to the estate. 
    • For instance, in some cases, an executor might commit a violation by using the estate funds for their own purposes. In such cases, it may be necessary to remove the executor and appoint a new one.

As you can see, various will disputes and issues can arise in addition to the issues involving witnesses. Most of these can be avoided through a clear and precise writing of the will document. This can be achieved through the help of a lawyer, who can help draft and review the document for accuracy.  

Should I Hire a Lawyer for Help with a Self-Probating Will?

Wills, including self-probating wills, can be complex documents. A wills, trusts, and estates lawyer in your can help you draft your will and help you with the probate process. Most of the time, people use lawyers to draft their wills to ensure their validity. An attorney can also be of help if there is any type of will dispute or contest in connection with a document.