June 2, 2015
A Legally Binding Last Will & Testament is All About Proper Execution
So you’ve done the hard part – you’ve created your will. But you’re not out of the woods yet! Now you have to execute your will, which brings with it a few considerations.
Executing Your Will
State laws have specific requirements for proper execution of wills. If you don’t follow these, your will may be found ineffective. If that happens, your property will transfer according to the statutory requirements in your state, which often does not meet your desired outcome. That is why it is so important to properly execute your will once you’ve finished preparing it.
Proper execution of a will depends mostly on the type of will you create. While the vast majority of folks prepare typed wills, some people create what are called holographic wills - written entirely in your handwriting and signed by you. This is most often done in emergency situations, although it does not have to be. Holographic wills are valid in the state of Texas. They don’t require witnesses for proper execution because the presumption is that the handwriting can be confirmed as yours. While this might sound convenient, depending on a holographic will often creates many potential pitfalls - the most common of which are questions of fraud. If this happens, resolution of issues will require court intervention, expensive lawyers, inconveniencing witnesses and a lot of time and effort. It can be flat-out brutal on your family to go through probate of a holographic will. So to save your loved ones time, money and headache, holographic wills should be avoided, except in cases of emergency.
Proving Up a Will with a Self-Proving Affidavit
When your will goes through probate, the executor of your estate must convince the court that your will is actually yours. In the past, part of that process required your witnesses to appear in the probate court to attest to the fact that the will is yours, and you signed it in their presence. And while this is still a valid way of executing and proving your will, it can be cumbersome and time consuming, as well as inconvenient for your family and witnesses. To help ease the process, the State of Texas passed a statute paving the way for the use of self-proving affidavits. With a self-proving affidavit, the will does not have to be proved in court, as the affidavit itself proves the validity of the will! When your witnesses sign the affidavit, they swear that they watched you sign the will and that you appeared to have the mental capacity necessary to make a valid will. And after your passing, the witnesses generally won’t have to submit further statements or even appear in court!
Signing Ceremony
Once you have proofread your will and you are ready to execute your will, the next step is to have your signing ceremony. The purpose of a signing ceremony is to bring you, your witnesses and the notary together and have your will executed. Everybody should be in the same room for the signing ceremony. If the parties don’t know each other, make sure they meet formally. Also make sure your two witnesses are at least 14 years old and are not inheriting anything under the will.
At the ceremony, make sure to initial the bottom of every page, including the last page. Then sign and date the last page, which is includes your self-proving affidavit. Next, the witnesses should sign your will in the attestation section of the last page.
Once everyone else has signed the affidavit, the notary should sign it and seal it with a valid notary public stamp or seal. Make sure the notary records this signing ceremony and the details in the Notary Public log book or record. There you have it, it’s that simple!
Remember, proper execution of a will is the most important step in the estate planning process. Going through the process correctly is well worth the effort. It will save your family time, expense and effort, and give you peace of mind that your estate is distributed the way you want it to be, not the way the government thinks it should be.