DIY Estate Planning Mistake #1: Forgetting the Self-Proving Affidavit
In this article, the first in a series about do-it-yourself estate planning mistakes, we explore one of the most common errors we see among people who create their Last Will and Testament using forms downloaded from the internet.
Have you heard of the “self-proving affidavit” for a Last Will and Testament? If you are a resident of Georgia, does your Will include a self-proving affidavit? If not, you could be creating big headaches for your heirs.
Let’s start with the basics. An affidavit is essentially the written version of swearing an oath. The self-proving affidavit documents that you were of sound mind when you signed your Will. Most people who take the do-it-yourself estate planning route have no idea that the self-proving affidavit even exists.
If you recently relocated to Georgia, you may have questions. Perhaps the state you came from had different requirements for the self-proving affidavit to be valid. Maybe that state didn’t allow them at all. Georgia does, however, and we have found that the self-proving affidavit makes the probate process easier and less complicated for everyone involved.
How is the self-proving affidavit used? When you come to our office for a Will signing, there will be two witnesses in the room with you. These people will watch you sign your Will, then they will sign it themselves as witnesses. Next, you (and both witnesses) will sign the self-proving affidavit, which must also be witnessed and signed by a notary public. Georgia law provides a template for a self-proving affidavit. This affidavit is then attached to your Will. While this affidavit is not a required component of the Will, its inclusion will make things easier for your Executor after you pass away.
What happens if you live in Georgia, you pass away, and your Will does not include a self-proving affidavit? In short, your heirs may have problems probating your Will. They will have to track down one of the witnesses who witnessed the signing and get them to sign a document that affirms you were of sound mind when you signed the Will.
That’s not always as easy as it sounds. I had a client recently whose husband passed away. His Will was from 1989. There was no self-proving affidavit.
I tried to track down the witnesses, but one had died and the other couldn’t be located. The attorney who created the Will had also passed away.
I found a way to probate the Will, but the process was complicated and time-consuming.
With a self-proving affidavit, your heirs can avoid this hassle. If you’re not sure whether your Will includes a self-proving affidavit, Kimbrough Law can help you find out. Give us a call at 706.850.6910 to schedule your confidential consultation.
