What's All This Self-Proved Wills Stuff, Anyway?

There are certain legal requirements for executing a valid Will in Minnesota. Your Will must be in writing, you must sign it in the presence of witnesses, and you must have testamentary capacity at the time you sign the document.

Executing a Will in Minnesota does not require a Notary Public. However, by taking the additional step of making your Will self-proved (which does require acknowledgement by a Notary), that helps establish that your Will was properly executed, in the event it is contested in court.

To make a Will self-proved, you and two witnesses acknowledge that you signed and executed the Will voluntarily, that you are at least 18 years of age, not under undue influence, and of sound mind. This is documented in a self-proved affidavit attached to your Will. You and the two witnesses sign the affidavit while in the presence of one another, and those signatures must then be notarized.

Under Minnesota law, a properly executed self-proved Will is automatically presumed by the probate court to be an authentic Will. That does not mean the Will is completely immune to challenge. In fact, no Will is certain to be air-tight. However, a self-proved Will is more difficult for an interested person to challenge in a Will contest. Since the proponent of a Will (usually the personal representative) bears the burden of proof in court to show due execution, having the Will self-proved adds evidentiary weight to defend it if contested.

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Crafting a Will that meets your wishes is an important tool to protect your assets for your loved ones. Talking to a qualified estate planning attorney is a great place to start.

What's All This Witness Stuff, Anyway?

If you are contemplating having an estate plan prepared, it's important to know that there are a few requirements under Minnesota law to legally complete (execute) the documents. Some of the documents require the presence and signatures of witnesses.

Wills:

The Will must be signed by the you, (the testator), or signed in your name by someone in your conscious presence, plus it must be signed by at least two individuals who have witnessed your signing.

For added protection, your Will should be self-proved. A Will is self-proved when you and the witnesses acknowledge in an affidavit that you signed and executed the Will voluntarily, within the presence of at least two witnesses, that you are at least 18 years old, not under undue influence, and of sound mind. The affidavit must be acknowledged by a Notary Public. Your Will can be made self-proved at the time it is executed or at any time thereafter.

Making your Will self-proved helps establish that it was properly executed, in the event it is contested in court. Thus, witnesses to a self-proved Will are not required to testify in court, as the court automatically deems the self-proved Will to be authentic. This is important, as a proponent of a Will (usually the personal representative) has the burden of proof to show that the Will is valid. If the Will is not self-proved, at least one of the attesting witnesses would be required to provide testimony in court.

Any competent, adult individual may act as a witness to a Will, and Minnesota law does not require the witnesses to be "disinterested." However, it is strongly advised to never allow any interested persons (i.e., beneficiaries) to act as witnesses, to avoid an appearance of conflict of interest.

Power of Attorney:

Unlike in the case of Wills, executing a Power of Attorney does not require the presence of witnesses, but it does require you (the principal) to sign the document. The execution must also be acknowledged by a Notary Public.

Health Care Directives:

To execute your Health Care Directive, it must be signed by you or someone authorized to sign for you, and either acknowledged by a Notary Public or signed by two adult witnesses.

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If you are thinking about obtaining an estate plan, a qualified Minnesota attorney can help you get started.