What Qualifies as a Last Will and Testament? Part 2

In my blog post last week, I explained the elements of a validly executed will.  When someone dies with a will, it must first be admitted to probate before the executor named in the document can begin to do what is required to administer the decedent’s assets.

In New Jersey, if the required elements are followed and the will is a “self proving” one, the process is very simple and does not need to involve a judge.  The will can be submitted to the Surrogate, who examines it to be certain all the elements are there before accepting it and issuing Letters Testamentary.  It is these letters that allow the executor to act on behalf of the estate.  If the elements are not present, then an application needs to be made before a judge who must determine whether to permit the written document to be probated as the last will or not.

So, what makes a will “self proving”?  As I explained last week, a will must be signed by two people who either witnessed the signing or the testator’s acknowledgement of the signature.  A self proving will contains an affidavit stating that the witness observed the testator sign it willingly (or someone else sign it at the testator’s direction), that it was done voluntarily, not under any duress and that to the best of the witness’s knowledge the testator is at least 18 years old.

The statute provides an example of the language that is sufficient to make the will self proving.  Although the affidavit does not need exactly mirror the language in the statute, the  essential elements must be present.  The Surrogate cannot accept the document without those elements.

While the probate process can be quite simple if one follows “the roadmap” set out by the law, we have seen too many instances where something is missing.  That’s where it gets interesting and complicated.  I’ll get into that next week.