[WSBAPT] Self proving affidavit/declaration - notarized?

Mon Oct 19 11:31:30 PDT 2015

The only trouble we have has is if the person makes the will and moves to another state.  I have not had one of these since we added the language below giving the Washington authority:

DECLARATION OF
WITNESSES

(in
lieu of affidavit as authorized by RCW 9A.72.085, RCW 11.20.020, Gen. Ct. R.
Wash. 13, 

In re Estate of Starkel, No. 33275-2-II. (Wash. App. Div. 2006))

            Each one of us whose signature
appears below, declares and states that on the date that is written above, in
the presence of each one of us, the signer signed and declared the foregoing
instrument consisting of           pages, to be the signer's Will, and we have signed
below as attesting witnesses, remaining in the signer's presence and in the
presence of each other; and that we know the signer, and the signer appears to
us to be of full age, sound and disposing mind and memory and competent in
every respect to make a Will and not under any restraint and we make this
declaration at the signer's request.

I
certify under penalty of perjury under the laws of the State of Washington that the
aforementioned is true and correct.

Best, Marcia
From: mlanglie at goddulanglie.com
To: wsbapt at lists.wsbarppt.com
Date: Mon, 19 Oct 2015 11:13:48 -0700
Subject: Re: [WSBAPT] Self proving affidavit/declaration - notarized?

            See: http://apps.leg.wa.gov/RCW/default.aspx?cite=9A.72.085  We have been using the Declaration of Witnesses for more than twenty years—as have many other practitioners.  I have never had a challenge to any will presented with a Declaration. Regards, Margaret C. Langliemlanglie at goddulanglie.com(360) 378-2181goddulanglieLawyers ♦ AdvisorsPO Box 460Friday Harbor, WA 98250The information in this e-mail is confidential and may be legally privileged. It is intended solely for the addressee. Access to this e-mail by anyone else is unauthorized. If you are not the intended recipient, any disclosure, copying, distribution or any action taken or omitted to be taken in reliance on it, is prohibited and may be unlawful. From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Jim Doran
Sent: Monday, October 19, 2015 10:57 AM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Self proving affidavit/declaration - notarized? Now I am confused again.  I will stick with the 2 witnesses and with the two witnesses affidavit being notarized.  Does a Declaration for the two witnesses work or not?James R. DoranAttorney at Law100 E. Pine Street -  Suite 205Bellingham, WA 98225
(360)393-9506jim at doranlegal.comwww.doranlegal.com On Mon, Oct 19, 2015 at 10:28 AM, Dalynne Singleton <dalynne at singletonlawgroup.net> wrote: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 11.12.020Requisites 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 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 11.20.020Application 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 11.28.330 or 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 Singleton3215 NW Lowell Street, #161Silverdale, WA  98383Phone: 360-329-4079Fax:     360-443-1259E-mail: dalynne at singletonlawgroup.netWeb:    www.singletonlawgroup.net LICENSED IN WASHINGTON AND OREGONIMPORTANT/CONFIDENTIAL: This e-mail message (and any attachments accompanying it) may contain confidential information, including information protected by attorney-client privilege. The information is intended only for the use of the intended recipient(s).  Delivery of this message to anyone other than the intended recipient(s) is not intended to waive any privilege or otherwise detract from the confidentiality of the message.  If you are not the intended recipient, or if this message has been addressed to you in error, do not read, disclose, reproduce, distribute, disseminate or otherwise use this transmission, rather, please promptly notify the sender by reply e-mail, and then destroy all copies of the message and its attachments, if any.            From: 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>
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> 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. BrattLawyer  Office: (360) 213-2040  Fax: (360) 213-2030   CONFIDENTIALITY NOTICE:  This email message may contain confidential or privileged information.  If you have received this message by mistake, please do not review, disclose, copy, or distribute the email. Instead, please notify us immediately by replying to this message or telephoning us.  Thank you. NOTE:  I do not use encrypted email.  Messages sent to or from my office via email are not secure and may not be protected by attorney-client privilege.  This email address is not monitored at all times.  If your matter is urgent, please phone my office during regular business hours. TAX ADVICE NOTICE: IRS Circular 230 requires us to advise you that, if this communication or any attachment contains any tax advice, the advice is not intended to be used, and cannot be used, for the purpose of avoiding federal tax penalties. A taxpayer may rely on professional advice to avoid federal tax penalties only if the advice is reflected in a comprehensive tax opinion that conforms to stringent requirements. Please contact us if you have any questions about Circular 230 or would like to discuss our preparation of an opinion that conforms to these IRS rules.    From: 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 Sent: Friday, October 16, 2015 10:15 AMTo: 'WSBA Probate & 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 98118sherman at shermansnowlaw.com  _______________________________________________
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