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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Is a Hand-Written Notarized Will Legal?
 

References

Related articles

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

Before a court can probate a will, it must determine that the will is valid and authentic. Although laws vary from state to state, proving the validity of a will generally entails ensuring that it was created and signed by the person executing the will, called the "testator," and that it complies with state law. In most states, a will can be prepared in a way that eliminates any additional action on the part of the executor during the probate process.

How to Break a Will or Probate

Probate is court-supervised administration of a testator's last will and testament. Upon the death of the person making the will, the executor files the will in probate court and begins to gather and inventory estate assets. Although the executor is usually selected by the testator and named in the will, the court reviews the procedure to assure honesty, accuracy and fairness. The court only approves a valid will, so anyone wishing to "break" a will or probate must allege and prove facts making the will invalid.

When Someone Dies, How Is the Estate Settled?

State law governs probate process and procedure, whether the decedent died with or without a will. Probate takes place in the county, parish or other locale where the deceased resided or where he owned property. If you have been named as executor or administrator, often referred to as a personal representative, you will pay debts and expenses of the estate from available funds and distribute the remaining assets according to the terms of a will or state law. Depending on the estate, this process can be quite lengthy or relatively brief and completed within a few months.

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