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Self-Proving Wills

Many readers have recently written to our office inquiring as to whether or not a person need change his Will after having moved here from another State. One reader, specifically, wrote: "my wife and I had a Will drawn in Queens, New York. We now live here in New Jersey. Is our old Will still valid?"

New Jersey law recognizes as valid a Will drawn in another State, if done for a client in accordance with local laws. However, any former Wills drawn, including those prepared under New Jersey law, require the availability of a witness at the time the decedent dies. At least one witness must be available to appear at the Surrogate?s Court to affirm that the Will was properly executed under the circumstances which would not give rise to question any undue influence or duress at the time of the signing. Frequently, this witness may have been either a secretary, neighbor or other person either unknown to the maker of the Will, or someone who may not be alive when they are needed to appear at the Surrogate?s Court. This may result in a search for the witness and, if unavailable, the Will may not be admitted to probate thereby causing an intestacy.

New Jersey law has been amended to include the "self-proving Will". Since 1978, a properly drawn Will is witnessed and notarized. This simple procedure avoids the need to locate witnesses after the maker of the Will dies. It does not mean that a pre-1978 Will drawn either here or out-of-state is invalid. However, it avoids the Executor having to even look for these former witnesses. Whether dead or alive, pregnant or retired, the witnesses are no longer needed!

Lastly, a former Will can be made self-proving, if and only if, all of the witnesses to the original Will are available to sign a short affidavit in the presence of a Notary Public. If not practical to bring all the witnesses together (or impossible, if one has already died) you can make the duties of your Executor much more simple by having a self-proving Will drawn by your attorney.

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