Delaware Self-Proving Will: Witness Rules and the Affidavit Process

When an executor opens probate in Delaware, the Register of Wills must verify that the will was properly executed. Without a self-proving affidavit, that means locating both original witnesses — sometimes years after the will was signed — and having them confirm (in person or by written statement) that the signing was legitimate.

If a witness has moved out of state, become incapacitated, or died, verification becomes difficult and expensive. A self-proving affidavit eliminates this entire step.

What Makes a Will "Self-Proving" in Delaware

Under 12 Del. C. § 1305, a self-proving will includes a sworn affidavit signed at the same time as the will itself. The affidavit is signed by:

1. The testator (the person making the will)
2. Both witnesses
3. A notary public who administers the oath

The affidavit states, under penalty of perjury, that the testator signed the will voluntarily, was of sound mind, and that the witnesses observed the signing. Once notarized, this affidavit travels with the will and serves as automatic proof of proper execution during probate.

The Register of Wills can then admit the will to probate without contacting either witness — saving the executor time, effort, and potential legal fees.

Delaware's Witness Requirements for Wills

Delaware requires two competent adult witnesses for a valid will. The rules for will witnesses are more relaxed than for other Delaware estate planning documents:

Wills: Witnesses should be competent adults. Beneficiaries are not legally disqualified from witnessing, though using disinterested witnesses (people who don't inherit under the will) is strongly recommended to avoid challenges.

Compare to Powers of Attorney: Under 12 Del. C. Ch. 49A, the witness must not be related to the principal by blood, marriage, or adoption, and must not be entitled to any portion of the estate.

Compare to Advance Directives: Delaware imposes a five-point exclusion list — relatives, beneficiaries, creditors, medical care providers, and facility employees are all disqualified.

The practical advice for wills is the same despite the lighter legal restrictions: use two unrelated adults who are not named in the will. This removes any basis for a challenge and ensures the self-proving affidavit holds up without question.

The Notarization Difference

A common misconception: a notary on a Delaware will is not required to make the will valid. Two witnesses alone are sufficient for legal validity. The notary is required only to make the will self-proving — that is, to eliminate the need for witness verification during probate.

This distinction matters because some people sign their will with two witnesses but no notary, thinking it's fully handled. The will is valid, but the executor will need to track down those witnesses after the testator's death. Adding a notary at the original signing ceremony prevents this.

How to Execute a Self-Proving Will

The signing ceremony should proceed in this order:

1. Everyone gathers in the same room — the testator, both witnesses, and a notary public
2. The testator signs and dates the will in the presence of all three
3. Both witnesses sign the will
4. The notary administers the oath and all three (testator and both witnesses) sign the self-proving affidavit
5. The notary notarizes the affidavit

The entire process takes about 15 minutes. Mobile notary services in Delaware typically charge $25 to $75 per appointment.

Can You Add a Self-Proving Affidavit Later?

Yes. If you signed a will with two witnesses but no notary, you can execute the self-proving affidavit at a later date — provided the same two witnesses are available. You'll need to reconvene with both witnesses before a notary to sign the affidavit under oath.

However, this becomes increasingly impractical as time passes. Witnesses move, become unavailable, or may not remember the signing clearly enough to comfortably swear under oath. The simplest approach is to include the notarized affidavit during the original signing.

Where to Store the Original Will

Delaware's 10-day filing rule (12 Del. C. § 1301) requires anyone in possession of an original will to deliver it to the county Register of Wills within 10 days of learning of the testator's death. This makes the storage location critical:

• Tell your executor exactly where the original is kept. A fireproof home safe or a bank safe deposit box are common choices.
• Do not store the original will only in a safe deposit box that requires probate court authorization to open — this creates a catch-22.
• Consider filing the will with the Register of Wills during your lifetime. Delaware allows living individuals to deposit their original will with the county Register for safekeeping.

The Delaware Basic Estate Planning Kit includes the witness eligibility reference and self-proving affidavit format built around Delaware's specific requirements, so the signing ceremony goes smoothly the first time.

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