Clients who have researched estate planning online often ask specifically for a self-proving affidavit, a document common in many other states that lets a will skip live witness testimony in probate court. New York's practice is structured a little differently, and understanding that difference helps set the right expectations before execution day.
How New York Handles Proof of Execution
Many states allow a self-proving affidavit signed by the witnesses at the time of execution to substitute entirely for their live or written testimony during probate. New York instead commonly uses an attestation clause within the will itself, describing the formalities that were observed, along with a separate witness affidavit that can often be executed at the same time as the will. SCPA 1406 permits an affidavit of the attesting witnesses, taken before the will is offered for probate, which can allow the Surrogate's Court to admit the will without requiring the witnesses to appear in person, easing administration considerably when witnesses remain available and cooperative.
Why This Distinction Matters for Drafting
Because the mechanics differ from the self-proving affidavit clients may have read about, the execution ceremony needs to be structured correctly from the start. Preparing the witness affidavit at the same signing session, while witnesses are present and memories are fresh, is far more reliable than trying to track down witnesses years or decades later after the testator has died. If a witness has moved, died, or become unreachable by the time probate is needed, the process becomes considerably more complicated.
- Execute the witness affidavit at the same session as the will whenever possible
- Choose witnesses reasonably likely to remain reachable in the future
- Keep the affidavit together with the original will in secure storage
- Understand that a properly attested will can still be probated even without this affidavit, through other proof methods
- Ask your attorney to confirm the specific execution protocol used, since practices vary among firms
Getting the Execution Ceremony Right the First Time
The execution ceremony is not just a formality; it is the evidentiary foundation the Surrogate's Court relies on to admit the will to probate. A well-documented signing, with the right witnesses and contemporaneous affidavits, can save an estate significant time and expense. This is a core part of how we execute every will for our clients.
If you are unsure whether your existing will was executed with the documentation needed for a smooth probate, our attorneys can review it. Call Schwartsman Law Group at (212) 518-3868 or schedule a free consultation.
