Wills are legal documents that provide instructions regarding how a person’s property should be distributed after they pass away. The people who are to receive part or all of the property of the person who made the will are called the “beneficiaries.” Wills include instructions for distributing the bulk of the estate and often contain specific instructions regarding who should receive certain special property items, such as a valuable family heirloom.
A will must meet certain legal requirements as specified by the state law in which it is enforced. Although the laws vary from state to state, these requirements typically include:
- The will must be in writing;
- The will must have been signed by the person making it;
- Two impartial witnesses witnessed the will;
- At the time of signing the will, the person who made it is an adult with testamentary capacity – the legal and mental capacity to make a will.
What Is “Probate”?
Probate is the legal process that establishes the validity of a person’s will and then ensures that the directions in the will are carried out. The probate process also addresses other issues relating to a person’s passing, e.g., paying any final taxes that might be owed and paying off their remaining debts, if they have any.
This probate process starts when the executor of the will (the person named in the will for being responsible for seeing that the decedent’s wishes are carried out) or, if there is no executor, a relative or other interested party presents the will to the probate court and opens a probate case.
The probate court first confirms that the will is valid and then supervises paying debts and distributing assets. Probate courts may also handle other matters. For instance, if there is a will contest or a dispute regarding any aspect of the will, the probate court may be required to resolve these disputes.
The first hurdle in reviewing a will is proving it is valid, as discussed above. This can be complicated and require the appearance of the witnesses to the will in probate court. A “self-probating” or “self-proving” will is a will with affidavits that prove that the will was formed and executed according to the law.
Are Witnesses of a Will Called Upon During Probate?
A written will must be signed before at least two witnesses to be valid. The witnesses ensure that:
- The person making the will is, in fact, the person they claim to be;
- The person is of sound mind;
- Nothing suggests that the person making the will was subjected to duress, fraud, or other undue influence.
When a will is probated after a person passes away, these witnesses sometimes need to be called into court for a variety of reasons. For instance, they may need to confirm that they were present when the will was signed and that everything they have attested to as witnesses is true. They will also verify their signatures on the will. However, it can sometimes happen that these witnesses die or become difficult to locate long before a will is probated. That is one reason a self-probating will is a good idea – with it, there is no need to call the witnesses into court, and they don’t even have to be available or alive.
What Is a “Self-Probating Will”?
A person can help simplify the probate process by adding to their will the affidavits or sworn statements of the witnesses to the person’s signing of their will. If these affidavits are included with a will, it is referred to as a “self-probating” or “self-proving” will.
The affidavits must include statements that the witnesses saw the person sign the will and that the testator asked them to be witnesses. In addition, the affidavits must state that the testator appeared mentally competent at the time and acted voluntarily, with no one pressuring them to make any particular bequests.
If these affidavits of the witnesses are not submitted to the probate court with the will, the probate process is more complicated and takes more time. If there are no affidavits, the executor must contact the original witnesses and have them appear in probate court to testify.
In fact, before the personal representative or executor can even file the will in probate court, the witnesses usually have to appear in probate court or provide an affidavit describing the circumstances surrounding the execution of the will. This testimony helps to “prove” that the will is genuine. If that testimony cannot be obtained, the court may have to declare the will invalid.
When affidavits are used, probate courts usually allow the will to be submitted for probate along with the affidavits, thus avoiding the need to summon witnesses or obtain new affidavits. The court then gives notice to the heirs and gives them a specific amount of time to make any objections to the will being admitted to probate.
What Other Issues Can Be Avoided with a Self-Probating Will?
In addition to the issue of witness availability for the probate process, various other issues relating to wills can arise. The assistance of an attorney may be needed to help resolve some disputes fairly. Some of the issues that can come up may include the following:
- Disputes About the Estate of the Testator: Some beneficiaries may dispute the disposition of certain property items. This is fairly common, especially regarding family heirlooms or other items with special value. This is often caused by unclear language in the will itself. Another problem that can come up is when a piece of personal property was intended to pass to a specific beneficiary, but when it comes time to distribute the estate, the item cannot be found.
- Disputes Over Named Beneficiaries: Sometimes, family members may dispute the inclusion of certain people as beneficiaries in a will. They may attempt to have the people excluded from the distribution of property. To the other extreme, a person entitled to inherit may have been excluded, e.g., a spouse. These disputes can become complicated and will be made worse if the language of the will is unclear.
- Disputes Over the Executor: The executor is the person named in the will to manage the probate process and the distribution of property. They handle such tasks as searching for the testator’s property and, as mentioned above, paying final taxes and debts from the person’s estate. In some cases, the executor might not complete all the tasks they are supposed to complete, or they may even commit a legal violation concerning the estate. For instance, an executor might use estate funds for their own purposes, which is illegal. In such cases, it may be necessary to have the executor removed and a new one appointed.
As can be seen, various issues can arise in connection with wills and probate. Most problems with a will can be avoided if the will is drafted well in the first place. At a minimum, it should be thorough, clear, and precise. This can be achieved with the help of a lawyer, who can help draft and review the document for accuracy and clarity and ensure that the person’s true wishes are the ones written in the document.
Should I Hire a Lawyer for Help with a Self-Probating Will?
An experienced inheritance lawyer can help you draft your will and help you prepare for the probate process so that, hopefully, everything runs smoothly and your estate is distributed as you wish.
A local lawyer will know all the laws specific to your state. An attorney can also help if anyone should contest the will or if other issues arise during the probate process.