Remembering TCPaul, 2016-2019

Another will question

This is in New York...client is adamant there won’t be a w nycop04/14/19
there is no requirement in any state that a will be self-pro dingbat04/14/19
P.S. with anything in the legal world (or outside of it, for dingbat04/14/19
Your real concern is that you or the other witness will flak 2tierreality04/14/19
I have had to probate wills which were not self-proved. Wit jeffm04/15/19
Ditto everything that's been said. Without the self-proving jaredj04/15/19
nycop (Apr 14, 2019 - 5:57 pm)

This is in New York...client is adamant there won’t be a will contest (beneficiaries are 2 adult kids, both doing well). There’s no requirement in NY that a will be self-proving. Should I just get one witness and I could be the 2nd witness? What’s the con against this?

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dingbat (Apr 14, 2019 - 6:32 pm)

there is no requirement in any state that a will be self-proving (to my knowledge). You do it anyway. (note: NY has a few other quirky laws related to presence of witnesses and timing of signatures, which I'm not getting into)

The difference between a self-proving will and a non-self-proving will has to do with the assumption of validity and the burden of proof to overturn.

A properly executed will that is not self-proving has a rebuttable presumption of validity. If challenged, the witnesses will need to testify to the validity of the will, and it's a little easier to overturn a will on technical grounds. On the other hand, a self-proving will is valid absent evidence of fraud or forgery, making it near-impossible to overturn.

Best practice is to make all wills self-proving. There's always a chance someone will contest something,and it's just sloppy to leave such an opening. It's really not that hard to get two witnesses and a notary in the room for the signing.

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dingbat (Apr 14, 2019 - 6:43 pm)

P.S. with anything in the legal world (or outside of it, for that matter), if you're aware of certain best practices, even if you don't know why, just follow them. Best practices are there for a reason, there's no need to cut corners and risk unintended consequences.


(on the other hand, that's also why far too many attorneys have a disclaimer citing Circular 230. It's unnecessary, but unless you're actually familiar with what it means, the concept should be scary enough to warrant inclusion, and, hey, everyone else is doing it, so I should too)

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2tierreality (Apr 14, 2019 - 8:48 pm)

Your real concern is that you or the other witness will flake or somehow be unavailable when the will is to be admitted.

I don't know about new york, but in some states you may be able to execute the witness affidavit after the fact and hold it in the file.

Any time I serve as witness and there's no affidavit executed simultaneously and attached to the will I execute an affidavit as soon as possible and stash it in the file (just in case I die or I'm lounging on a beach somewhere, post-lotto).

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jeffm (Apr 15, 2019 - 9:14 am)

I have had to probate wills which were not self-proved. Witnesses die, move far away, become ncm, etc. Always self-prove. There is no downside to doing it.

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jaredj (Apr 15, 2019 - 9:28 am)

Ditto everything that's been said. Without the self-proving affidavits, you would need to coordinate getting three people (two witnesses, one executor) into the probate office after the testator dies.

I'll spare you the anecdote of the time I had to hale in witnesses to verify the testator's handwriting of a holographic will.

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