Why do I need an Affidavit of Execution for my Will or Power of Attorney
What is an Affidavit of Execution?
A witness to the donation of a Power of Attorney or one of the witnesses to a Will may make a sworn statement known as a “affidavit of execution.” In other words, when the affidavit is signed, it proves that the witness attested to the Will’s or Power of Attorney’s signature.
Can the Affidavit be sworn before a Notary Public?
Like all affidavits, affidavits of execution can be sworn to or affirmed before not only a commissioner for oaths, but also a notary public.
What relationship exists between a Will and an Affidavit of Execution?
To start with, the relationship between an affidavit of execution and a Will is such that each can operate without the other. This means that the affidavit is not a requirement of a valid Will. However, it is highly recommended, because the availability of an affidavit of execution goes to the proper execution of the Will.
What is the relevance of an Affidavit of Execution to a Will?
Where at any given time a Will is contested and therefore required to undergo probate, it is the practice of courts to request an affidavit of execution to authenticate the making of the Will. As such, preparing and completing the affidavit can shield potential beneficiaries of a Will against the unnecessary and prolonged legal process and added legal costs.
What is meant by Probate, and what is its relevance to determining the authenticity of a Will?
When a person who owned assets real or incorporeal dies, the beneficiaries of his estate may not be able to access these assets until the entire estate has undergone probate.
Probate, therefore, entails all the processes and applications which are undertaken before the courts in other to legally access and carry out the wishes of the testator about his/her properties.
In instances where a will exists before the death of the deceased, probate as a process is used by courts to achieve the following;
- Ascertain the validity of the Will; and
- Authenticate the executors of the Will.
In the circumstance that the deceased was unable to prepare his last will, a member of the family may apply to the courts for a Certificate of Appointment to become the executor.
Apart from the two popular cases identified above, they exist other situations which may require the application for probate. Below are some examples;
Where the Will exists but does not name an executor;
Where there is an argument as to who should be the executor;
and where the Will names beneficiaries who are not able to provide legal consent.
There are rare instances in which the executors may apply for probate to secure extra legal protection should the Will be contested or where a certain claim to it has expired.
It is the practice that the Executors/ Administrators apply for probate in the province where a testator resides before his demise.
How to apply for probate?
You can apply for a grant of probate by submitting the following:
- The original Will
- Proof/certificate of death
- An affidavit of the execution of the Will
- Probate forms
In what way is Probate connected to an Affidavit of Execution?
Usually, probate takes very long, however, the process can be considerably shorter when an affidavit of execution is available. Without the affidavit, however, the court would have to track down witnesses to confirm they witnessed the signing of the Will. This becomes even more cumbersome, resource- and time-consuming if the witnesses cannot be found or are dead. With an affidavit of execution duly notarized, the process of applying for and obtaining probate becomes much more seamless.
Can an affidavit of execution be notarized remotely/online
Your affidavit can be notarized online after you book an appointment with a Notary public and have signed your affidavit electronically. The affidavit of execution can be prepared immediately after the testator makes the will or after his death.
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Do you need to consult with someone about your legal matters or need to get any documents notarized? Get in touch with Juris Notary, and we’ll be happy to help you out or point you in the correct direction if need be.
