How to Prove a Will When Your Subscribing Witnesses Are All Dead or Unavailable

By Wayne Thomas

Wills can be an effective estate planning tool for distributing property after your death. But, for its terms to be honored when you pass away, most states require someone who was present at the time the will was signed to attest to the document's validity. Knowing how a will can be verified if all witnesses either pass away or cannot be found will help ensure that your property passes according to your wishes.

Will Formalities

In most states, typed wills must be signed by the person making the will, known as the testator, in the presence of at least two witnesses. When the testator passes away, the will ordinarily must be submitted to the probate court to be "proved," or declared valid, before property can be distributed according to its terms. This is typically done through oral testimony or a sworn affidavit from one or both of the subscribing witnesses affirming that the will was executed according to state law.

Self-Proving Affidavits

If all of the witnesses are either deceased or cannot be located, it can be difficult to ascertain whether the will is authentic. For this reason, many states will consider a will valid without testimony of the witnesses if a self-proving affidavit was made at the time the will was signed. This affidavit is signed by the witnesses and testator in the presence of a notary, attesting that the will was valid on the date that it was executed.

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Attorney's Presence

If the testator did not attach a self-proving affidavit, and the witnesses cannot be found, a court may still have some options short of invalidating the will. For example, some states presume that a will was validly executed if the process was supervised by an attorney. However, this presumption can always be overcome, which might be the case if the person objecting to the validity of the will presents compelling evidence that the witness signatures were forged.

Handwritten Wills

In many states, wills that were drafted in the testator's own handwriting do not require witnesses. These are known as holographic wills; to be considered valid, the court must see that the testator's handwriting matches the handwriting contained in the will. This could be done by comparing other known writings of the deceased or through the testimony of someone close to the testator, such as a spouse or sibling.

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What Is the Act or Process of Proving the Validity of a Will?

References

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Illinois Laws on Wills

A valid will can nominate someone to manage your estate and detail how your property should be distributed when you die. In Illinois, wills must comply with the Illinois Compiled Statutes, which address requirements such as the age and mental condition of the person making the will. If your will doesn't meet these requirements, it may be declared invalid, and your estate will be distributed according to state law.

How to Contest a Will in Florida

After the death of a loved one, both family members and Florida courts want to ensure that the estate is distributed according to the decedent's wishes. As a result, Florida law allows people to challenge wills in cases of undue influence, fraud or mental incapacity. Knowing how a will may be challenged may help you understand the importance of following the state's laws when drafting your own will.

Can a Power of Attorney Sign a Will?

A power of attorney grants one person the legal authority to act on behalf of another for certain purposes, which are usually stated in the document granting power of attorney. However, a person with power of attorney cannot take some actions on behalf of another, including signing the other person's will on her behalf.

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