Can a will be probated if both witnesses are deceased?

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Can a will be probated if both witnesses are deceased?

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Asked on February 13, 2018 under Estate Planning, New Jersey

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

When the maker of a Will (i.e. "testator") dies, a Will is submitted to the probate court to be declared valid (i.e. be "proved"), before assets can be distributed. This is usually done through the oral testimony or sworn affidavit(s) from one or both of the witnesses stating that the Will was executed according to state law. If all of the witnesses are either deceased or cannot otherwise be contacted, it can be difficult to ascertain whether a Will is authentic. For this reason, many states  consider a Will to be valid without witnesses if a "self-proving affidavit" was made at the time that the Will was executed. This affidavit is signed by both the witnesses and testator in the presence of a notary, attesting that the Will is valid at the time that it is signed. Further, in most states, if the witnesses are deceased at the time the Will is entered into probate, so long as the executor can get a handwriting expert to confirm that signatures on the Will are genuine.

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

When the maker of a Will (i.e. "testator") dies, a Will is submitted to the probate court to be declared valid (i.e. be "proved"), before assets can be distributed. This is usually done through the oral testimony or sworn affidavit(s) from one or both of the witnesses stating that the Will was executed according to state law. If all of the witnesses are either deceased or cannot otherwise be contacted, it can be difficult to ascertain whether a Will is authentic. For this reason, many states  consider a Will to be valid without witnesses if a "self-proving affidavit" was made at the time that the Will was executed. This affidavit is signed by both the witnesses and testator in the presence of a notary, attesting that the Will is valid at the time that it is signed. Further, in most states, if the witnesses are deceased at the time the Will is entered into probate, so long as the executor can get a handwriting expert to confirm that signatures on the Will are genuine. 


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