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Affidavits of Execution - Everything You Need to Know

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    An affidavit of execution is a document that helps to confirm the validity of a will or legal document. It is signed by a witness to verify that you signed the document voluntarily and were of sound mind.

    You might be wondering - but I've signed and witnessed my will properly, don’t I already have a legally-binding will? 

    If you’ve completed the signing and witnessing requirements, you have a legal will. Congrats! However, there are a couple of other things to consider once your will is legal.

    One of the first things you should do is register your will with CanadaWillRegistry.org (free for Willful customers), store the original copy of your will in a safe place, and inform your executor and any backups about where it’s located so they can find it easily.

    There’s one additional step you can take to remove a step from your executor’s list after you pass away: getting a notarized or commissioned affidavit of execution.

    Let’s go back to basics for one moment...

    What Is An Affidavit Of Execution?

    An affidavit of execution is a form that is filled out by one of your witnesses, and states that they were with you when you signed your will, and that they were in the presence of you (the will-maker) as well as the other witness, and they confirm these statements to be true. It essentially helps confirm the validity of your will. After completing the form, the witness needs to get the form notarized, and then it is stored with your will. 

    If probate – the process of the courts formally accepting the will and appointing the executor – is required, the affidavit of execution is then provided to the courts after you pass away as part of an executor’s application for a grant of probate. 

    What’s probate? Find out here → 

    Is An Affidavit Of Execution Required To Make My Will Legally-valid?

    No. As long as you follow the instructions to create, sign, and witness your will correctly, you have a legally-valid will. An affidavit of execution is not part of the will itself and is a separate document that is only required by the courts if your will is required to go through probate.

    Do I Have To Get An Affidavit Of Execution At The Same Time I Create My Will? 

    No, you do not. Many people choose to get an affidavit of execution completed at the time they create their will, while others choose to get one in the future - it can also be completed after your passing.

    Why Would I Get An Affidavit Of Execution Now Vs. Later?

    Whether you should get your affidavit of execution now or later depends on a few different factors. Many people opt to get an affidavit of execution at the time they create their will if: 

    • They want to alleviate this task (which can be time-consuming and difficult depending on the circumstances of the witnesses and if they are easy to locate, in good health, etc.) from their executors’ list after they pass away
    • They don’t expect to make updates to their will (an updated version of the will would require a new affidavit of execution)

    If you expect to need to make updates to your will in the future, you may opt to wait to get your affidavit of execution. Some people also opt to wait because they don’t want to incur the cost now, or simply do not want to take the extra step at the time they create their will.

    Just remember that the longer you wait, the less likely your affidavit may be to get done. And without one, settling your estate may take much longer.

    Ultimately, the choice is up to you! Your will is not any more or less legally-valid based on when you get your affidavit of execution.

    What Happens If I Pass Away And I Haven’t Completed An Affidavit Of Execution?

    Your executor would find one of your witnesses, who would complete it after you pass. If both of your witnesses have passed away or are unreachable, your executor would have to show the courts they made a reasonable attempt to find them, and provide other evidence that helps to support the validity of the will. It’s a good idea to store the contact information for your witnesses with your will so your executor can easily track them down after you pass.

    The process of tracking down witnesses can add to the time it takes for an executor or estate administrator to settle an estate. That’s why getting an affidavit of execution at the same time you make your will helps speed things along, add security to your will, and smooth the way for your estate distribution in the future.

    Is An Affidavit of Execution Required In All Provinces? 

    An affidavit of execution is required as part of the probate process in all provinces except British Columbia.

    Do I Need My Affidavit Of Execution Notarized?

    Yes! Like all affidavits, an affidavit of execution needs to be notarized or commissioned in order for it to be completed. This can typically be done by a legal professional including:

    • Lawyers
    • Notary publics
    • Commissioners

    This is a common point of confusion for why many Canadians believe they need their will to be notarized. Your will does NOT need to be notarized or commissioned, only the affidavit of execution does.

    Does my will need to be notarized? →

    What Is A Commissioner Of Oaths Or Notary?

    Commissioners of oaths and notaries can serve as an official witness to the signing of documents. Their role is to protect against fraud by verifying documents.

    When it comes to an affidavit of execution, a commissioner of oaths or notary must be present to ‘commission’ or 'notarize' the sworn statement in the document. Notaries and commissioners are able to officially administer your oath or affirmation.

    Note: In Ontario, every lawyer and paralegal is also automatically a commissioner for taking affidavits.

    Is There A Cost Associated With An Affidavit Of Execution?

    Willful provides free affidavit of execution documents for each of our active provinces, however you will need to pay to have the document notarized or commissioned. Willful does not have a notary or commissioner on staff and it will typically cost a least $99 to have your affidavit of execution notarized. Scroll down to find a list of free provincial affidavit of execution documents.

    We also have a partnership with Notary Pro in Ontario to help you get this done easily online, and we’re working on additional partnerships in other provinces.

    Important Note NotaryPro provides complimentary virtual Affidavits of Execution (AOE) if you use their virtual will service.

    If your documents have already been signed and witnessed, but you would still like an AOE, you can book an in-person appointment and bring the signed documents and a witness to the appointment.

    How To Get An Affidavit Of Execution

    An affidavit of execution is easier to complete than you might think. Forms are widely available and often free. If you have a Willful will, we’ve included these instructions with documents.

    We've gathered official government links (where applicable) and downloadable forms below. Please read through these forms and the instructions provided carefully. 

    Your witness will sign the affidavit swearing that it is true, and then it simply needs to be notarized or commissioned by an individual who is authorized to do so. 

    And that’s all on affidavits of execution! Simple, right?

    If you have any questions about your affidavit of execution or your Willful documents, you can contact our team of experts here.

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