Last week I wrote about the process of probate and how easy it is to admit a will to probate without the need to appear before judge if it is a self-proving one. But what exactly is a self-proving will?
New Jersey law sets out clear instructions on how to make a will self-proved. The testator (person signing his/her will) must sign the will before a notary public or attorney at law and the witnesses must sign an affidavit before a notary public or attorney at law. The affidavit should state that the testator signed the will willingly, that the witnesses signed in the presence of the testator as witness to the testator signing the will and, to the best of the witness’ knowledge that the testator is 18 years of age or older, of sound mind and not under any undue influence. The statute even includes a form which, if followed, will meet the requirements.
Attorneys who practice in the area of wills and trusts understand the requirements. Problems generally occur when the testator decides to save the legal cost by doing it him/herself, which has certainly become easier in the age of the internet. This approach, however, reminds of the adage “penny wise and pound foolish”.
In my 30 years in private practice there have been a few cases in our office which have been problematic. In a couple of instances we have attempted to probate wills that did not exactly mirror the self-proving language contained in the statute. Although it is a safer bet to copy the example contained in the statute word for word, it is not required. The law specifically says that the affidavit need only follow in “substantial form”. It does not have to be verbatim and I have successfully persuaded the Surrogate’s office to accept wills for probate in these types of cases.
When there is no affidavit by the witnesses or a will which is signed but not before a notary public or attorney, however, more effort is involved. The witnesses must first be located. If at least one witness then signs an affidavit before a notary public or attorney at law then most surrogates will accept that and probate the will. On the other hand, if the witnesses cannot be located, are unwilling to sign the affidavit or have passed away then probating the will involves an application asking a judge to admit the will. It can’t be avoided and the cost of this legal proceeding will in most cases be more expensive than the cost of having an experienced wills and trusts attorney prepare a self-proving will.