Before a court can probate a will, it must determine that the will is valid and authentic. Although each state has its own rules, the courts typically require proof the will was actually created and signed by the person executing the will (called the “testator),” and that it otherwise complies with state law. In almost all states, a will can be prepared in a way that obviates any additional action on the part of the executor during the probate process. This called a “self-proving” will. If a will is not prepared in compliance with state law, additional steps must be taken to prove the its validity.

Self-Proving Wills

In many states, wills can be automatically “proved” if certain requirements are satisfied by including certain criteria in the contents of the will. Specifically, the execution of the will must be witnessed by two individuals who. Along with the testator, sign the will twice. First, the testator signs the will in front of two witnesses and the witnesses then sign the document. Next, the testator and the witnesses swear, before a notary, that the will was signed in each other’s presence. The notary then affixes her notary seal to the document.

Verification By Witnesses

When a will is not self-proving, most states require that the witnesses affirm to the court that the testator actually signed it. Usually, the witnesses affirm that they saw the testator sign the document. In some instances, the witnesses affirm that the testator confirmed that his or her signature appeared on the will. Generally, the witnesses provide this information to the court through sworn oral testimony. However, some states allow the witnesses to provide the information through sworn written testimony called an “affidavit.” State law may only require the testimony of one witness.

Deceased Or Unlocatable Witness

What happens when one or both witnesses cannot be located, cannot be identified, or have died? State laws must then be consulted to determine how the executor should address this situation. In most states, the executor is required to conduct a diligent search for the witnesses. If the witnesses still cannot be located, some states allow the executor to validate the will by providing sworn testimony that he or she believes the will is valid and authentic.

Holographic Wills

Generally, a holographic will is one written by the testator and not witnessed. State laws on holographic wills vary considerably. Some states require that the entire holographic will be written in the testator’s handwriting. Proving a holographic will is much more difficult for the executor because evidence must be provided to the court proving that the will was actually executed by the testator. In most cases, handwriting samples from the testator are submitted to the court for comparison with the will.

Please call Lynx Legal Services at 888-441-2355 with any questions regarding these issues, or if you are ready to start a case. Our representatives are standing by to answer any inquiries you may have.