A guide to writing and understanding an affidavit of execution and why you need notary services to validate them
When it comes time for you to write and sign your Will, you’ll need a witness present. Your witnesses would sign an affidavit of execution to certify that they were there and that the document is legitimate. If you decide to get an affidavit of execution, you’ll need to acquire notary services to finalize the document. Even though these documents aren’t a legal requirement, it’s highly recommended and can prevent legal troubles and complications. You don’t need to hire a lawyer or legal professional to make or witness a will; however, they’re still legally binding. Therefore, you’ll need the signature of a lawyer, notary public, or commissioner to confirm authenticity.
There are different kinds of affidavits, so it’ll help to know what an affidavit is – in general – before we get into the specifics of affidavits of execution.
What’s the difference between an affidavit and an affidavit of execution?
An affidavit is a document used to swear or affirm a set of facts or information. It’s a written statement used in court proceedings and submitted to a judge as evidence. Generally, affidavits also contain documents that support the claims made by the person who made the affidavit. These documents are attached to the affidavit as exhibits (e.g., Exhibit A, Exhibit B, etc.)
There are many instances where you may need an affidavit, and there are different types. Some examples of different types include:
- Self-proving will affidavit
- Financial affidavit
- Affidavits of power of attorney or next of kin
- Affidavits of identity theft
- Court affidavits
An affidavit of execution is just another type of affidavit. These are used to confirm that your witnesses were present during the signing and witnessing of your Will. Generally, you need at least two witnesses present when you sign a will. When the owner of a Will dies, these witnesses may be called upon in court to testify that the Will is valid. Alternatively, a self-proving Will affidavit deems a Will valid by the person who signed it without the need for witnesses.
Regardless of whatever type of affidavit is made and signed, you’ll need notary services to notarize and certify the document legally. An affidavit that isn’t notarized is not valid.
How to write an affidavit of execution
It can be intimidating to write up a legal document, especially if you have no legal background (which most people don’t). The great news is that although affidavits of execution are very important, they aren’t that difficult to write. You’re all set as long as you have the few required details included in your document. You don’t need to write multiple pages of information, nor do you need to use legal jargon; all you need is:
- The name, city or town, and province or territory of the person who’s writing the Will
- The name, city or town, and province or territory of each witness (two people)
- The date that the Will gets signed and witnessed
- The date that the affidavit of execution gets signed and witnessed
Depending on which province you live in, some offer templates for affidavits of execution you can fill out so that you don’t have to write them yourself:
Notary services are mandatory to validate any affidavit.
Since an affidavit is a legal document that can be used as evidence in a court of law, it’ll always need to be notarized by a legal professional. These professionals will be present while you and your witnesses sign your documents. You must wait to sign your documents until a legal professional can administer them. They certify that you are who you say you are and that you were the one who physically signed the document. If you sign it beforehand, they have no way to prove who signed it and therefore, the affidavit would not be valid. As mentioned above, a legal professional can include a lawyer, commissioner, or a notary public.
Notary services – what to expect when you get your affidavit of execution notarized
The final step to completing and validating an affidavit of execution is to obtain notary services from a legal professional (the person commissioning the affidavit). Whether you’re a witness or you have witnesses for your own Will, this is what you can expect:
- The commissioner will start by confirming the identity of each witness with the government-issues photo ID they provide
- The witnesses will have to swear or affirm that the information in the affidavit is true
- Once witnesses have sworn or affirmed the information in the document, the commissioner will then ask them to sign the document
- After all, parties sign the affidavit in front of the commissioner, they will then sign it themselves and stamp it with a seal
- Finally, the commissioner marks the Will and any additional Exhibit accordingly and then attaches them to the affidavit.
To avoid any issues, it’s always a good idea to ensure that you won’t make any updates or changes to the Will. If you make changes to your Will, you’ll likely need your witnesses to sign a new affidavit of execution. Do not tamper with or alter your original documents. Never take the paper apart, and keep it in a safe place. If a judge believes there could be a possibility the affidavit was tampered with, they won’t accept it.
Why you should get an affidavit of execution
You do not need an affidavit of execution to make your Will legally binding. However, there’s a probate’ process where the courts may request an affidavit. When someone passes away owning assets (vehicles, property, investments, etc.), probate is required whether or not there’s a Will. This process aims to determine the validity of the Will and to confirm who’ll be the executor of the estate (the person inheriting the assets). When you have an affidavit of execution, it reduces the possibility of someone contesting the Will.
Taking the extra time to write up an affidavit of execution can save your family from arguments and disagreements regarding who’s inheriting the assets and who are responsible for handling other affairs. Having an affidavit formally accepted as valid will make the transition easier for everyone. Furthermore, you’ll know that your matters are taken care of the way you wish.
