[WSBAPT] Self proving affidavit/declaration - notarized?

Mon Oct 19 11:31:19 PDT 2015

I’ve never encountered a problem with a proper declaration under the penalty of perjury being accepted in a Washington court.

What basis did the Kitsap judge have for disregarding RCW 9A.72.085 and GR 13?  These aren’t new statutes or unusual solitary local rules from another venue.  In re Estate of Starkel is even a Division II case, which encompasses Kitsap county.

Did your rejected petition and Will affidavit have the requisite language, date, and place of signing for unsworn statements?

Tara M. Roberts

Puget Sound Law pllc

roberts at pugetsoundlaw.com

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From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Dalynne Singleton
Sent: Monday, October 19, 2015 10:28 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Self proving affidavit/declaration - notarized?

Be aware that in Kitsap County, the Judges require the notary to the 2 witness signatures.  I had the Commissioner reject my Petition for Probate of Will and had to find the 2 witnesses.  If you don’t do it at the time of signing the will and having 2 witnesses signatures, then you will have to get post-death which is sometimes very difficult to find the witnesses.  I find it much easier to do at the time of signing the Will with the witnesses in my office.  Since my office is just me and my paralegal, I usually have the person signing the Will bring a friend who is not named in the Will to witness OR I ask other staff in the building to assist.  

RCW 11.12.020

Requisites of wills — Foreign wills.

(1) Every will shall be in writing signed by the testator or by some other person under the testator's direction in the testator's presence, and shall be attested by two or more competent witnesses, by subscribing their names to the will, or by signing an affidavit that complies with RCW  <http://apps.leg.wa.gov/RCW/default.aspx?cite=11.20.020> 11.20.020(2), while in the presence of the testator and at the testator's direction or request: PROVIDED, That a last will and testament, executed in the mode prescribed by the law of the place where executed or of the testator's domicile, either at the time of the will's execution or at the time of the testator's death, shall be deemed to be legally executed, and shall be of the same force and effect as if executed in the mode prescribed by the laws of this state.

     (2) This section shall be applied to all wills, whenever executed, including those subject to pending probate proceedings.

RCW 11.20.020

Application for probate — Hearing — Order — Proof — Record of testimony — Affidavits of attesting witnesses.

(1) Applications for the probate of a will and for letters testamentary, or either, may be made to the judge of the court having jurisdiction and the court may immediately hear the proofs and either probate or reject such will as the testimony may justify. Upon such hearing the court shall make and cause to be entered a formal order, either establishing and probating such will, or refusing to establish and probate the same, and such order shall be conclusive except in the event of a contest of such will as hereinafter provided. All testimony in support of the will shall be reduced to writing, signed by the witnesses, and certified by the judge of the court. If the application for probate of a will does not request the appointment of a personal representative and the court enters an adjudication of testacy establishing such will no further administration shall be required except as commenced pursuant to RCW  <http://apps.leg.wa.gov/RCW/default.aspx?cite=11.28.330> 11.28.330 or  <http://apps.leg.wa.gov/RCW/default.aspx?cite=11.28.340> 11.28.340.

     (2) In addition to the foregoing procedure for the proof of wills, any or all of the attesting witnesses to a will may, at the request of the testator or, after his or her decease, at the request of the executor or any person interested under it, make an affidavit before any person authorized to administer oaths, stating such facts as they would be required to testify to in court to prove such will, which affidavit may be written on the will or may be attached to the will or to a photographic copy of the will. The sworn statement of any witness so taken shall be accepted by the court as if it had been taken before the court.

Dalynne Singleton

3215 NW Lowell Street, #161

Silverdale, WA  98383

Phone: 360-329-4079

Fax:     360-443-1259

E-mail:  <mailto:dalynne at singletonlawgroup.net> dalynne at singletonlawgroup.net

Web:     <http://www.singletonlawgroup.net/> www.singletonlawgroup.net

LICENSED IN WASHINGTON AND OREGON

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From: wsbapt-bounces at lists.wsbarppt.com <mailto:wsbapt-bounces at lists.wsbarppt.com>  [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of John J. Sullivan
Sent: Sunday, October 18, 2015 1:56 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com <mailto:wsbapt at lists.wsbarppt.com> >
Subject: Re: [WSBAPT] Self proving affidavit/declaration - notarized?

I generally use declarations these days since our office is lean and mean. I haven't had a problem proving WA law in ancillary situations. 

I had an interesting situation last week - a will from 1960 that was labeled a copy, indicating the original was in the office of a now deceased attorney. But this was before Xerox machines, so the "copy" had original signatures in blue ink. Velategui accepted it as an original. 

John Sullivan

Sent from my iPhone

On Oct 18, 2015, at 1:19 PM, Douglas Bratt <djbratt at mbavancouverlaw.com <mailto:djbratt at mbavancouverlaw.com> > wrote:

I have done both, given the Washington statute that equates a properly crafted Declaration as being legally equivalent to an Affidavit.  I always use the Affidavit if I am involved in having the client sign in the office where there are plenty of potential witnesses.  However, upon occasion, with disabled folks, or people in the hospital, to whom I travel, I often choose to use the Declaration, meaning that I only have to involve one neighbor, or a person from down the hall in the hospital, to have the necessary witnesses, assuming I am to be one of the witnesses.

I can echo Martin’s concerns, however, if the will gets probated in another state.  It is not all that much trouble (at least for multi-attorney offices) to always have a couple of witnesses, along with me serving as a Notary, that I would think that would be the practical way to do it, with the least probable issues with the PR getting hassled in an out-of-state court, by a judge in whose state the Declaration form is not similarly accepted in lieu of an Affidavit.

I simply would not habitually do it just one way, in any circumstance.  Each case gets analyzed as to what works best for the convenience of the client, given his/her personal circumstances, and me, in getting the signing accomplished most economically, time-wise.

Regards,

Doug Bratt

Douglas J. Bratt

Lawyer

Office: (360) 213-2040 

 Fax: (360) 213-2030

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From: wsbapt-bounces at lists.wsbarppt.com <mailto:wsbapt-bounces at lists.wsbarppt.com>  [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Martin Silver
Sent: Friday, October 16, 2015 10:49 AM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Self proving affidavit/declaration - notarized?

I haven't done a will in years, but my only concern was if the estate has to be probated in another jurisdiction, do you want to have to go through the rigmarole of proving up 
WA law.  So I went back to witness affidavits in most cases.  

From: Sherman Snow <mailto:sherman at shermansnowlaw.com>  

Sent: Friday, October 16, 2015 10:15 AM

To: 'WSBA Probate  <mailto:wsbapt at lists.wsbarppt.com> & Trust Listserv' 

Subject: [WSBAPT] Self proving affidavit/declaration - notarized?

Happy Friday – 

Just curious if any of you for your wills, for the self-proving affidavit, use a declaration without a notary?

I have seen that to satisfy RCW 11.20.020 for a self-proving affidavit for a will, instead of the more traditional affidavit with two witness and a notary, just having a declaration with the two witness signatures. Pursuant to RCW 9A.72.085 the witnesses need to declare under penalty of perjury under the law of the State of Washington true and correct…, but it seems if this is satisfied, no notary is required for the affidavit.

Has anyone used this regularly? Any problems in probate?

Thanks so much, 

Sherman

Snow Law PLLC
(206) 659-2498
3703 S. Edmunds St. #104, Seattle WA 98118

 <mailto:sherman at shermansnowlaw.com> sherman at shermansnowlaw.com

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