Your Last Will and Testament will likely serve as the cornerstone of your estate plan. In fact, your Will may be your entire estate plan if you are young and have yet to create a more comprehensive estate plan. People often make the mistake of using “do-it-yourself” Will forms found on the internet or in local stationary stores instead of working with an experienced estate planning attorney when they create and execute a Will. Doing so can create a long list of problems for beneficiaries and loved ones when it comes time to probate the Will. For instance, most generic forms do not explain what a “ self-proving ” Will is much less why it is beneficial to make a self-proving Will in New York.
When you die, your Executor must produce your Last Will and Testament and submit it to the appropriate court for probate. The court is then charged with determining if the Will is authentic and if you were competent to sign the Will. Traditionally, this required the court to locate the witnesses to the Will and summon them into court to provide testimony regarding the Will and the state of mind of the testator. To avoid the need for witness testimony a self-proving Will may be used.
New York Code Section 1406 addresses the use of a self-proving Will and states as follows:
“In addition to other procedures prescribed for the proof of wills, any or all of the attesting witnesses to a will may at the request of the testator or after his death, at the request of the executor named in the will or of the proponent or the attorney for the proponent or of any person interested, make an affidavit before any officer authorized to administer oaths stating such facts as would if uncontradicted establish the genuineness of the will, the validity of its execution and that the testator at the time of execution was in all respects competent to make a will and not under any restraint. The sworn statement of a witness so taken shall be accepted by the court as though it had been taken before the court, unless: (a) a party entitled to process in the proceeding raises objection thereto or (b) for any other reason the court may require that the witness or witnesses be produced and examined”
In essence, if the witnesses also sign an affidavit at the time they witness the signing of the Will the affidavit will suffice to prove the Will for purposes of admitting the Will to probate.
If you have additional questions or concerns about creating or executing a self-proving Will, or about estate planning in general, contact the experienced New York estate planning attorneys at The Law Offices of Kobrick & Moccia, by calling 800-295-1917 to schedule your appointment.