How to Prove a Will (In Indiana)

Video

Introduction

Good morning, folks. It’s Andy Stautz with Stautz Law. I am back today for another talk about an estate planning and probate topic. Today, we’re talking about proving a will. And this talk is prompted by recent experiences on the probate side of my practice.  

Why Proving a Will is Important

So, to begin with, what’s the point of a will? The point of a will is to express a person’s last wishes regarding the disposition of their property. Just basically, right? It’s someone saying, here’s what I want to have happen.  

And historically, it’s been really important to make sure that the will document is actually the last wishes of that person, right? Because The person who can express those wishes is gone by the time you need the will. The person who can testify most to its accuracy, gone, right?  

I say historically, but still, to this day, a big consideration in probating a will is, are we sure this is the right one? Are we sure this is what the deceased person actually wanted? And that’s the origin of the term probate, really, right? We gotta prove the will.  

There are legal requirements for what makes a will and how to show that it’s the right one, that it should actually work and have legal effect. So in Indiana, and you know, I’m an Indiana attorney, this whole talk is about in Indiana, there are different routes, okay?  

Methods to Prove an Indiana Will

Best: Indiana Wills and Self-Proving Clause

The easiest by far is to attach a self-proving affidavit at the end of the will document. [The statutory reference is I.C. 29-1-5-3.1] And that’s what all of my wills include. And, you know, if you’re hiring a professional estate planner, every will, you know, we’re gonna include the self-proving affidavit. Some general practitioners might omit it, but it’s good to have.  

Why? Because the self-proofing affidavit is magic words. That means the will, when introduced to the court, just proves itself. It’s great.  

If you don’t do that, you’ve got the backup plans.  

Proving an Indiana Will by Subscribing Witness

Backup plan number one is you find one or both of the witnesses, and remember, witnesses are required to witness, you know, to create a will in the first place. So you go track down the witness and you say, Please, sir or madam, will you testify that this is the right will? And you can do that by live testimony in court. You can do that by affidavit. The hard part there is you got to go find the witness. And a lot of times, you know, you just have a signature. You don’t even know where the person lives or their contact information or whatever. And it could have been years ago. So if you’re trying to find, you know, John Smith and all you know is he signed a will in Greenwood, Indiana 20 years ago, you’re not setting yourself up for success. But that’s the other option.  

Proving an Indiana Will Otherwise

And then the backup backup plan is the court can consider other evidence. So, family members can come and they can say, we can’t find the witness, but we’ve got this will and we think it was his will and he never gave us any indication that he didn’t want it to be his will. But is the judge going to like that? Is that the best way to do it?  

So then the farther down this list of options you go, kind of the riskier it gets. And if you’re going into the trouble to make a will, you might as well make it in a way that you know it’s going to take effect and you know it’s going to get proven. 

Conclusion 

Moral of the story, do make a will. Do include a self-proving affidavit if you can. Have some sort of plan for how to prove it. And on the estate administration side, your probate lawyer is going to have to figure out which of these options is going to work in your situation.  

That was a general talk about Indiana law. If you need legal advice or you want me to handle your estate planning or probate, that’s great. You’re on my website. Give me a call or send me an e-mail and we can talk about your specific case. Hope you enjoyed that. Thanks, and bye for now.