Are self-proving wills recognized nationwide?
Linda stood in my Temecula office, tears welling up as she learned her mother’s will, meticulously prepared years ago in Florida, might be challenged in California. The problem wasn’t the will’s content, but the fact that it lacked a valid California self-proving affidavit. This simple oversight, stemming from assuming interstate recognition, could potentially force her family through a costly and time-consuming probate battle.
What is a Self-Proving Affidavit and Why Does it Matter?
A self-proving affidavit is a notarized statement attached to your will that verifies the signatures of the witnesses and the testator (the person making the will). It simplifies the probate process immensely. Without it, during probate, the court must locate each witness years after the will was signed to verify their signature, which can be difficult or impossible. I, as both an Estate Planning Attorney and a CPA, see these complications frequently – and they’re often avoidable with proper initial execution. It’s not just about avoiding delays; it’s about preserving the family’s assets and honoring the testator’s wishes.
Are Self-Proving Affidavits Universally Accepted?
While the concept of self-proving affidavits is broadly recognized, their validity isn’t automatic nationwide. Each state has its own specific requirements for execution and attestation. California, for example, has specific rules codified in Probate Code § 8220 that dictate the form and content of a valid self-proving affidavit. An affidavit that perfectly complies with Florida law might fall short in California, triggering the need for witness testimony.
What Happens if a Self-Proving Affidavit is Invalid?
If a court deems the self-proving affidavit invalid, the will isn’t necessarily thrown out. However, the court will require ‘in person’ proof of the will’s validity. This means locating each witness – and they must be competent and willing to testify. If a witness is deceased, unavailable, or refuses to testify, it can create significant problems. If the will fails, assets may fall under intestacy, though estates under $208,850 (effective April 1, 2025) might still avoid full probate. This can lead to unexpected distributions, delays, and substantial legal fees.
What About Wills Prepared During the Pandemic?
The COVID-19 pandemic led to temporary changes in many states’ laws regarding remote witnessing. While California allowed temporary remote witnessing during the pandemic, strict adherence to current presence requirements is critical to avoid invalidation. Even if a will was validly executed remotely under those emergency rules, it may not meet current standards for a self-proving affidavit.
What Can You Do to Ensure Your Will is Valid Nationwide?
The best practice is to have your will prepared and executed in accordance with the laws of your current state of residence. If you move, consider re-executing your will under the laws of your new state. Furthermore, I always recommend consulting with an attorney licensed in the state where the will will be probated. As a CPA, I also emphasize the importance of properly documenting all assets and considering potential tax implications, particularly regarding step-up in basis and avoiding unintended consequences. Improper execution can create significant tax liabilities for your beneficiaries.
What if a Witness is an Interested Party?
A common issue arises when a beneficiary of the will also serves as a witness. According to California Probate Code § 6112, interested witnesses risk voiding their gift unless there are two other disinterested witnesses, though the will itself often remains valid. This purging statute adds another layer of complexity that requires careful consideration during estate planning.
For more information about probate proceedings, you can visit the Riverside Superior Court – Probate Division.
Why do you need two witnesses for a valid California will?
The “Harmless Error” rule in California allows for some leeway, but relying on it is a gamble that costs thousands in legal fees. Why risk your family’s inheritance on a judge’s discretion?
- Proper Execution: Sign in the presence of two witnesses who also sign.
- Self-Proving: Use an affidavit to avoid hunting down witnesses later.
- Professional Help: Ensure compliance with Probate Code Section 6110.
To learn how to handle execution correctly, please review our article on making a will legally binding in California to empower your choices. Whether you are worried about the validity of an old will or preparing to sign a new one, expert supervision is your best defense against future contests. We are dedicated to providing rigorous legal support to families in San Diego and Riverside Counties. Call us today to schedule a signing appointment and take the final step in protecting your family.
About Steve Bliss: An estate planning attorney in Temecula
The Law Firm of Steven F. Bliss Esq. is a dedicated legal firm serving Temecula, Riverside County, and the Inland Empire. Led by Steven F. Bliss, the firm offers a unique advantage: Steve is an experienced CPA & Estate Planning Lawyer.
Whether the court requires a formal probate or allows for an unsupervised process, having a skilled attorney is essential to avoid delays. Don’t face the costly and confusing legal process alone—call attorney Steve Bliss today.
Visit The Law Firm of Steven F. Bliss Esq:
Address:
The Law Firm of Steven F. Bliss Esq.43920 Margarita Rd Ste F
Temecula, CA 92592
(951) 223-7000
