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No Self-Proving Will

For a will to be valid in Washington, it must be in writing and it must be signed in front of two witnesses who also sign the document in front of the person executing the will. RCW 11.12.020. You’d think that would be enough to have the will admitted to probate at death, but it's not. The two witnesses are required to come to court and testify regarding the will signing ceremony. Of course that’s not very practical. Therefore, if the will was prepared by a lawyer, he or she should have included a separate page or provision at the end of the will. In that “attestation” page, the two witnesses should have sworn under oath that they were present when the will was signed, the testator acknowledged the document to be his or her will, the testator requested that they sign as witnesses, they signed in front of the testator, and that the testator appeared competent. With that, you have a “self-proving will.” The family does not need to track down the witnesses to admit the will to probate and have the testator's wishes followed. The attestation provision/page is enough.

If you don’t have a self-proving will, you have a few options:

Option 3: Don’t try to admit the will

Many times, a person will execute a will that gives everything to a spouse and then to children equally. This is usually exactly what would happen if there were no will. See RCW 11.04.015. In other words, sometimes whether you have a will or not, the same people are the beneficiaries of the estate. If this is the case and you are having problems “proving” the will, then you should consider not going through the significant effort of proving the will, and instead begin a probate as if there were no will. You should still alert the judge or commissioner that there is an original will, which you are filing with the court, but that you are not trying to admit it to probate, given the lack of affidavits or declarations from the witnesses. The order appointing the administrator should include language rejecting the will, which will allow the four-month will challenge period to proceed. After the four-month period has elapsed, the distribution of the estate will follow Washington’s intestacy law and no one can come forward with a new will.

Option 1: Get declarations from the witnesses

Find the witnesses and have them sign an affidavit or declaration swearing that (1) they were present at the signing of the will, (2) the testator asked them to be witnesses, (3) they signed as witnesses in front of the testator, (4) the testator appeared competent when he or she signed the will, and (5) the testator understood the document to be his or her Last Will and Testament. A sample Declaration can be found here (PDF) (Word). If you are able to secure this sworn statement from the witnesses, you can use this in the initial hearing to “prove” the will.

Option 2: Use RCW 11.20.040 to prove the will

If you are unable to find the witnesses to the will, you may be able to use RCW 11.20.040 to have the will admitted to probate. Under this statute, the court is permitted to admit a will to probate if you can provide satisfactory evidence that the signatures of the testator and the witnesses are genuine. You must also provide the court sufficient evidence that would tend to prove the will. Meeting this standard may be very challenging, and getting legal assistance is advised.

Photo by Elijah Hiett on Unsplash