By Analija M. Zampogna, Esq.

If you have a Will in place, need one completed, or are named executor of a Will, ensure that it is an Original, Self-Proving Will. Whether or not your Will is valid differs among the states, but even if your Will meets the minimum requirements to be valid in Pennsylvania, it may not meet all the requirements to be probated–i.e., if it is not an Original, Self-Proving Will. 

Probate is defined as the legal process for proving the validity of a Will, and it is the beginning of the process by which a decedent’s probate assets, or assets owned solely by the decedent and without any designated beneficiaries, are properly administered. When a Will is rejected by the Register of Wills or the Orphans’ Court, the decedent’s probate assets are distributed according to Pennsylvania’s statutes on intestate succession. An intestate estate is composed of probate assets that are administered without a Will. 

Imagine a husband has a Will that leaves his entire estate to his wife, and his probate estate consists of various bank accounts in his own name totaling $300,000.00. If the husband’s Will is not able to be probated, and if the husband has children (with his wife) or parents who are still living, then the wife will not be able to receive his entire probate estate according to Section 2102 of Pennsylvania’s Statutes on Intestate Succession. In fact, the most she can receive is the first $30,000 plus one-half of his intestate or probate estate, or $165,000.00 in this example. 

The best way to prevent your probate assets from passing by intestate succession is to have an original, self-proving Will. At minimum, Pennsylvania requires that a valid Will be in writing and signed at the end by a testator who is at least 18 years old and of sound mind. However, if there is not an original will with the notarized signatures of the testator (i.e., the person making the will) and two witnesses, then additional steps will be required to begin the probate process. These additional steps may delay the administration process, increase legal fees, and, if unsuccessful, prevent the Will from being probated.  

When an executor has an original, self-proving will, initiating the probate process becomes significantly easier. A self-proving Will is one that is signed by the testator and two witnesses and is notarized. Assuming no one is contesting the validity of the Will, and that the Testator’s actual signature is present, having an original, self-proving Will allows the executor to begin the probate process immediately.

The following is a list of the four attributes that constitute an original, self-proving will, as well as additional circumstances or requirements that may arise:

  1. Original Will (not a copy)
    1. If the original Will is not found, the next step may be to petition the court to admit a copy of the Will. Pennsylvania has a “Lost Will Presumption,” which presumes that if an original will cannot be found, the testator destroyed the original with the intention of revoking it. Additional evidence will then be required to overcome this presumption to admit a copy of the Will. 
  2. Testator’s signature at the end of the Will
    1. Any writing found after the Testator’s signature will not be given any effect. 
    2. If the Testator is only able to make a “mark” rather than a signature, then he/she must do so in the presence of two witnesses who sign as well. 
    3. If the Testator is only able to instruct another to sign his/her will, then he/she must declare that the Will is his/her own in the presence of two witnesses who sign as well.  
  3. Signatures of two Witnesses (“Subscribing Witnesses”)
    1. If there are no witnesses, then proof of the testator’s signature will be required. This will require two oaths of non-subscribing witnesses. In this case, two people who were well-acquainted with the decedent and familiar with the decedent’s handwriting and signature need to attest that that the signature in the Will is the decedent’s, through an “Oath of Non-subscribing witness,” which must be notarized if executed out of the Register’s Office. 
  4. Notarized
    1. If the signatures to the Will are not notarized, then Oaths of Subscribing Witnesses will be required.
    2. If the subscribing witnesses are deceased or unattainable, then oaths of non-subscribing witnesses of the testator’s signature may be obtained. 

When having your Will drafted, it is important that you ensure that you retain your original Will in a location known by someone you trust. Additionally, ensure that you sign at the end, along with two witnesses, and have it notarized. As an executor, if any of the four conditions noted above are not met, the Will may still be probated if the additional, required steps are successfully completed. If you would like to ensure that you have a properly executed Will, or if you need assistance with probating an estate or completing your estate planning documents, call us at 412-209-3200 or email Ana Zampogna at for a free consultation.