Question: My mother passed away in May. She left a Will that was created and signed in 1993, which I submitted for probate. I am the beneficiary and executor in the Will as her husband is dead, and I am her only child. My mother’s property is in Georgia, but I live in Kentucky. The court says that I need to find witnesses of the Will, or get affidavits signed for the Will. What will happen if I can only find one witness to my mother’s Will?
Loraine’s Answer: In Georgia, a self-proving affidavit is a document executed by the testator (the creator of the Will), the witnesses to the Will, and a notary. A Georgia self-proving affidavit can be created at the same time that the Will is executed, or it can be created later, but they are generally executed at the same time as the Will and attached to it. The self-proving affidavit is essentially a statement by the testator and the witnesses to the Will that everything happened the way it was supposed to in order for the Will to have been validly executed. If a Will is presented for probate along with a qualifying self-proving affidavit, it can generally be admitted to probate without any additional witness testimony, unless there is a challenge to the validity of the Will. If no one is trying to challenge your mother’s Will, the fact that the court is asking you for witness affidavits tells me that her Will likely does not have a qualifying self-proving affidavit.
If a Will does not have a self-proving affidavit, then one way to support its validity as part of offering it for probate is to have at least one of the witnesses to the Will provide an affidavit, which is called an “Interrogatories to Witness to Will.” This affidavit is a standard form probate court document in Georgia. The witness who completes the Interrogatories is essentially asked to confirm whether the Will execution happened correctly for the Will to be valid.
If you cannot find any of the witnesses to the Will, or if none of the witnesses is willing and able to complete an Interrogatories, then you will need to provide affidavits from two disinterested parties. Each disinterested party must review a copy of the Will and then sign an affidavit in which they state who they are, how long they knew the decedent prior to her death, that they are familiar with the decedent’s signature, that they have reviewed a copy of the purported Will of the decedent, and that they believe that the Will was actually signed by the decedent. The court will also want an affidavit of diligent search to be provided by either the person offering the Will for probate or that person’s attorney. The affidavit of diligent search must outline the steps taken to try to locate the witnesses to the Will and to get at least one Interrogatories.
If you are being asked for two affidavits, and not just one Interrogatories, this suggests to me that either someone is trying to challenge the Will you’ve produced or that you could not find either witness and are now being told to submit disinterested party affidavits. I advise you to consult with an experienced probate attorney, show them what you’ve done to date, and have them help you figure out your next steps.
Key Estate Planning Takeaway: If a Will has a qualifying self-proving affidavit, it can generally be offered for probate without the need for additional witness testimony. If a Will does not have a qualifying self-proving affidavit, the court may ask the executor to submit other affidavits and documents that support the Will’s validity.
This “Q&A with Loraine” blog series is inspired by answers from Morgan + DiSalvo Partner Loraine DiSalvo to actual user questions posted by individuals on www.avvo.com. This blog is a more in-depth response than can be given on their site under their character limits for answers. To view the original question and Loraine’s original response, click here.
