Consequences of not having a Massachusetts Self Proving Affidavit for the will.

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Consequences of not having a Massachusetts Self Proving Affidavit for the will.

Regarding my Massachusetts will, since I live abroad far from a U.S. consulate, what are the consequences of not preparing the Massachusetts Self Proving Affidavit?

Asked on July 4, 2009 under Estate Planning, Massachusetts

Answers:

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

Answered 11 years ago | Contributor

In Massachusetts it is not necessary to notarize your will to make it legal.  Massachusetts does, however, allow you to make your will “self-proving.”  A self-proving will speeds up probate because the court can accept the will without contacting the witnesses who signed it.  Again, a self-proving affidavit is not a requirement in the Commonwealth of Massachusetts; it is however a good idea to sign one when executing a will.  It can greatly reduce the difficulty associated with probating the will when the time comes.  The testator, along with three witnesses, must sign the affidavit together in the presence of a notary public.  The affidavit is then attached to the will.  Its basic purpose is to affirm that the will is that of the testator. 

So while you don't have to execute the affidavit, as a practical matter in your case you really should do so.  How is the Probate Court going to track down 3 foreign witnesses?

As to whether or not a foreign notary will suffice, I have had trouble tracking down the answer to that question.  Some states do allow for this but in my brief research I could find nothing on point in Massachusetts law.  It doesn't mean that it's not there it's just that I was unable to locate the information in the time allotted me here.  So you can do one of two things:  you can directly contact an estate planning attorney in Massachusetts (a brief email or phone call may suffice to ask this question); or you can make the trip to the US Consulate and have the affidavit notarized there.

Best of luck.


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