What is a Self-Proving Will?

The Last Will and Testament is not only the most widely known estate planning device, it is also one of the most important.  Without a will, a person dies “intestate,” which means the laws of the state in which they lived will determine how and to whom their estate will be distributed.  But, with a valid will, you get to decide exactly how your property will be distributed upon your death, and to whom.  However, even with the security that a will provides, there can be challenges to the terms of the will.  One way to protect against a will contest, is to create what is known as a “self-proving will.”

General requirements for a valid will

Each state has its own legal requirements for creating a valid will.  Also, most states will accept a will from another state, if the document is deemed valid under that state’s laws.  Generally, the requirements are the same: (1) the document must be in writing, (2) it must be signed by the person making the will, and (3) it must be signed by two witnesses who witnessed the execution of the document itself and the signatures of the other witness.

Arkansas statutes regarding wills

Arkansas’ laws regarding Wills and Estates can be found in the Arkansas Code, Title 28 Wills, Estates and Fiduciary Relationships.  In Arkansas, any person eighteen (18) or more years of age who is of sound mind may make a will.  The terms “sound mind” generally means an individual who has not been deemed legally incompetent.

As in most states, a will in Arkansas must be in writing and signed by the testator (person executing the will) and two witnesses.  Each witness must have either seen the testator sign the will or the testator’s signature was acknowledged to the witness, and then sign the will in the testator’s presence.

Requirements of Witnesses

Witnesses must also be 18 years of age or older and generally competent.  It is always recommended that the witnesses be “disinterested,” meaning that they are not beneficiaries.  Although a will is not invalid simply because one of the witnesses is a beneficiary, if there are not at least two disinterested witnesses, then the one who is a beneficiary must give up any amount of their gift that exceeds the amount or value they would have received under the laws of intestate succession.

The benefit of a Self-Proving Will

It is not uncommon for the authenticity of a will to be challenged.  If the will is self-proven, on the other hand, the court will initially accept it as authentic.  The probate procedure for a self-proven will is much simpler.

How to self-prove a will

Creating a self-proving will in Fayetteville is not difficult.  All that is required is for the testator and the witnesses to affirm the will’s authenticity in an affidavit, before a notary public.  The notary will then stamp the affidavit with his or her seal.  The process of self-proving a will may be done at the time the will is executed, or later, including after the testator’s death.  The affidavit is usually made a part of the will or attached to it.  Even if the witnesses are available after the testator dies, having a self-proving affidavit eliminates the delay and effort in locating and requiring the witnesses to sign an affidavit or proof of will.

If you have questions regarding a wills, or any other estate planning needs, please contact Sexton, Bailey Attorneys, PA online, or by calling us at (479) 443-0062.