What is an Affidavit of Execution?
An affidavit of execution is a sworn statement made by one of the witnesses to a Will or a witness to the donation of a Power of Attorney. This means that when executed, the affidavit confirms that he or she attested to the signing of the Will or Power of Attorney.
This document is often required when a person or company needs to prove that a particular document has been properly signed and witnessed in accordance with the law.
Where can I download an Affidavit of Execution?
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.
How to Prepare an Affidavit of Execution
If you need to prepare an affidavit of execution, there are a few important steps to follow:
1. Identify the document that needs to be executed and the parties involved.
2. Find a witness who can attest to the execution of the document. The witness must be over 18 years old and cannot be a party to the document.
3. Prepare the affidavit of execution. The affidavit should include the date of execution, the names of the parties involved, and a statement confirming that the witness saw the document being signed.
4. Have the witness sign the affidavit in the presence of a notary public or commissioner of oaths. The notary public or commissioner of oaths will then affix their seal or stamp to the document.
5. File the affidavit of execution with the appropriate authorities, if required.
Is an Affidavit of Execution required?
An affidavit of execution is not required to make a Will legally-binding. However, it may be required for certain cases, such as part of the probate process in all provinces except British Columbia.
Where can I find template?
Each province and territory has its own set of rules and regulations regarding affidavit of execution, including the format and content of the affidavit. Therefore, it is common for provinces to provide their own affidavit templates, which are specific to the laws and requirements of that particular province or territory.
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.
How can All-Canada Notary Help You?
All-Canada Notary is a network of notary publics, they can help you draft and equally certify your affidavit of execution. We also operate physical and virtual notary services. You can book your appointment online and get your affidavit of execution with All-Canada Notary today.