Self-Proving Affidavits in North Dakota Wills: Why You Need One and How to Draft It

When a family submits a Last Will and Testament to a North Dakota District Court decades after it was signed, a hidden procedural trap can stall the entire estate if the will was merely witnessed and never made self-proved. If any heir or creditor challenges the validity of a standard witnessed will in a formal testacy proceeding, North Dakota law requires the family to track down at least one of the original attesting witnesses to testify in court-a costly nightmare if the witnesses have passed away, relocated across the country, or forgotten the signing ceremony.

Attaching a properly drafted self-proving affidavit under N.D. Cent. Code § 30.1-08-04 permanently eliminates the need to hunt down witnesses after your death. By having the testator and two attesting witnesses execute a sworn statutory certificate before a notary public, the document proves its own due execution on its face, allowing North Dakota courts to admit the will to probate immediately without live witness testimony.

The Exact Legal Language Required in ND

Before drafting a self-proving affidavit, it is vital to understand a unique quirk of North Dakota probate law. Under N.D. Cent. Code § 30.1-08-02, a testator can legally execute a non-holographic will by signing it either before two attesting witnesses OR by acknowledging the signature before a notary public alone. However, under N.D. Cent. Code § 30.1-15-06, a will that is merely notarized without two witnesses only receives a rebuttable presumption of proper execution. By contrast, a will executed with two attesting witnesses AND a notarized self-proving affidavit under N.D. Cent. Code § 30.1-08-04 conclusively complies with signature execution requirements without the testimony of any witness, unless there is direct evidence of fraud or forgery affecting the affidavit.

In Matter of Estate of Wagner, 265 N.W.2d 459 (ND Supreme Court 1978) and In re Estate of Dion, 623 N.W.2d 720 (ND Supreme Court 2001), the North Dakota Supreme Court emphasized how strict compliance with statutory execution formalities establishes prima facie proof of due execution and places a heavy burden on anyone attempting to overturn the instrument. Furthermore, N.D. Cent. Code § 30.1-08-04 subsection 3 provides a vital drafting safety net: a signature affixed to a self-proving affidavit attached to a will is legally considered a signature affixed to the will itself if necessary to prove due execution.

For a will that is simultaneously executed, attested, and made self-proved during a single signing ceremony, N.D. Cent. Code § 30.1-08-04 subsection 1 requires the certificate attached or annexed to the will to be in substantially the following exact statutory form:

"STATE OF _______________
COUNTY OF _______________

I, _______________, the testator, sign my name to this instrument this _____ day of __________, _____, and being first sworn, declare to the undersigned authority that I sign and execute this instrument as my will and that I sign it willingly or willingly direct another to sign for me, that I execute it as my free and voluntary act for the purposes therein expressed, and that I am 18 years of age or older, of sound mind, and under no constraint or undue influence.

______________________________
Testator

We, _______________, _______________, the witnesses, sign our names to this instrument, and being first sworn, declare to the undersigned authority that the testator signs and executes this instrument as the testator's will and that the testator signs it willingly or willingly directs another to sign for the testator, and that each of us, in the presence and hearing of the testator, hereby signs this will as witness to the testator's signing, and that to the best of our knowledge the testator is 18 years of age or older, of sound mind, and under no constraint or undue influence.

______________________________
Witness
______________________________
Witness

Subscribed, sworn to, and acknowledged before me by _______________, the testator, and subscribed and sworn to before me by _______________ and _______________, witnesses, this _____ day of __________, _____.

(SEAL)
(Signed) ______________________________
(Official capacity of officer)"

Notarization Requirements for the Affidavit

Executing a self-proving affidavit in North Dakota requires strict adherence to both probate statutes and the notarial laws enforced by the North Dakota Secretary of State, Bismarck. Because the statutory certificate combines an acknowledgment by the testator with a verification on oath or affirmation (jurat) by the testator and both witnesses, a simple notary stamp without administering a verbal oath is insufficient.

• Mandatory Oath and Personal Appearance: Under N.D. Cent. Code § 30.1-08-04 and N.D. Cent. Code § 44-06.1-14, the testator and both witnesses must appear before an officer authorized to administer oaths, prove their identity, and be placed under oath or affirmation before signing the affidavit.
• Unsworn Declarations Are Strictly Prohibited: While North Dakota allows unsworn declarations under penalty of perjury for many routine documents, both the Uniform Unsworn Domestic Declarations Act (N.D. Cent. Code § 31-15-03) and the Uniform Unsworn Foreign Declarations Act (N.D. Cent. Code § 31-14-03) explicitly prohibit using an unsworn declaration in place of the notarized oath required by N.D. Cent. Code § 30.1-08-04.
• Official Notary Seal and Certificate: Pursuant to N.D. Cent. Code § 44-06.1-16, the notary public must affix their official stamping device (seal), sign the jurat block, state their official capacity, and print their commission expiration date.
• Competent and Disinterested Witnesses: Under N.D. Cent. Code § 30.1-08-05, any generally competent individual may act as a witness, and having an interested beneficiary witness a North Dakota will does not automatically invalidate the will. However, best drafting practice requires using two completely disinterested adult witnesses so no contestant can allege undue influence during the execution ceremony.

Can You Add a Self-Proving Affidavit to an Older Will?

Yes. If you already executed a valid witnessed will in the past that lacked a notary certificate, you do not necessarily have to rewrite your entire will. Under N.D. Cent. Code § 30.1-08-04 subsection 2, a will that was executed with attesting witnesses may be made self-proved "at any time after its execution" by the acknowledgment of the testator and the affidavits of the original witnesses made before an officer authorized to administer oaths.

To add a self-proving affidavit to an existing North Dakota will, the testator and the same two original witnesses who signed the will must gather before a notary public with the original will in hand. Because the will was already signed on a prior date, N.D. Cent. Code § 30.1-08-04 subsection 2 prescribes slightly different statutory wording that refers to the already-signed instrument:

"STATE OF _______________
COUNTY OF _______________

We, _______________, _______________, and _______________, the testator and the witnesses, respectively, whose names are signed to the attached or foregoing instrument, being first duly sworn, do hereby declare to the undersigned authority that the testator signed and executed the instrument as the testator's will and that the testator had signed willingly or directed another to sign for the testator, and that the testator executed it as the testator's free and voluntary act for the purposes therein expressed; and that each of the witnesses, in the presence and hearing of the testator, signed the will as witness and that to the best of our knowledge the testator was at that time 18 years of age or older, of sound mind, and under no constraint or undue influence.

______________________________
Testator
______________________________
Witness
______________________________
Witness

Subscribed, sworn to, and acknowledged before me by _______________, the testator, and subscribed and sworn to before me by _______________ and _______________, witnesses, this _____ day of __________, _____.

(SEAL)
(Signed) ______________________________
(Official capacity of officer)"

If one or both of your original witnesses have died or moved away since you signed your older will, you cannot execute a subsequent self-proving affidavit with substitute witnesses. Instead, the cleanest solution is to re-execute the will (or execute a self-proved codicil republishing the will) in front of two new witnesses and a notary public.

Step-by-Step Process in North Dakota for Executing a Self-Proving Affidavit

Whether you live in Fargo, Bismarck, Grand Forks, or Minot, following a formal execution ceremony ensures your will glides through the Cass County District Court, Fargo, the Burleigh County District Court, Bismarck, the Grand Forks County District Court, Grand Forks, or the Ward County District Court, Minot without procedural objections.

Step 1: Gathering Documents and Selecting the Correct Statutory Template

Choose the simultaneous execution template under N.D. Cent. Code § 30.1-08-04 subsection 1 if you are signing a brand-new will, or the subsequent execution template under subsection 2 if you are upgrading a previously signed witnessed will. Print the affidavit either on the final page of the will immediately following the attestation clause or on an annexed page firmly stapled to the will.

Step 2: Assembling Two Competent Witnesses and a Commissioned Notary

Coordinate a single in-person meeting with two disinterested adult witnesses and an active North Dakota notary public. Everyone must bring current government-issued photo identification so the notary can verify identities under N.D. Cent. Code § 44-06.1-06.

Step 3: Administering the Oath and Acknowledging the Will

Before anyone signs the self-proving certificate, the notary places the testator and both witnesses under oath or affirmation. The testator verbally declares to the notary and witnesses that the document is their Last Will and Testament, signed freely and voluntarily.

Step 4: Signing the Will and the Self-Proving Certificate

While the testator and both witnesses remain in each other's conscious presence and hearing, the testator signs the will and the self-proving affidavit line, followed immediately by Witness 1 and Witness 2 signing both the attestation block and the affidavit block.

Step 5: Affixing the Official Notary Seal and Annexing the Affidavit

The notary completes the jurat block, signs their official signature, and stamps the official notary seal. Never remove the staples from the original will and affidavit. When the testator passes away, the Personal Representative files the original self-proved will alongside Form 2, North Dakota, Supreme Court, Application for Informal Probate of Will and Appointment of a Personal Representative. Under N.D. Cent. Code § 30.1-14-03 and N.D. Cent. Code § 30.1-15-05, the court immediately accepts the self-proved will as duly executed and issues Form 3, North Dakota, Supreme Court, Statement of Informal Probate of Will and Appointment of a Personal Representative and Form 4, North Dakota, Supreme Court, Letters Testamentary without requiring any witness affidavits.

How Much Does it Cost in North Dakota?

Making a North Dakota will self-proved costs virtually nothing at the time of signing while saving the estate thousands of dollars in potential probate litigation costs:

• Statutory Notary Public Fee: Under N.D. Cent. Code § 44-06.1-28, a North Dakota notary public is legally capped at charging no more than $5 per notarial act (many banks, credit unions, and law offices provide notary services free of charge to clients).
• Attorney Drafting and Execution Supervision: When you hire a North Dakota estate planning lawyer to draft a Last Will and Testament (typically $300 to $1,000 flat fee), the self-proving affidavit, two staff witnesses, and an in-house notary are almost always included at no extra charge.
• District Court Probate Filing Fee: Opening informal or formal probate in a North Dakota District Court requires a statutory filing fee of $160 under N.D. Cent. Code § 27-05.2-03.
• Avoided Witness-Locating Costs: If a contested will is not self-proved, hiring private investigators, serving subpoenas, and taking out-of-state witness depositions under N.D. Cent. Code § 30.1-15-06 can easily cost an estate $1,500 to $5,000+ in additional legal fees.

How Long Does the Process Take?

Completing the self-proving affidavit during a coordinated will-signing ceremony takes only 15 to 20 minutes. By contrast, if a will is not self-proved and an heir demands formal proof of execution after the testator's death, locating witnesses and scheduling evidentiary hearings in a North Dakota District Court can delay the issuance of Letters Testamentary by 6 weeks to 6 months. With a valid self-proving affidavit attached, informal probate applications in North Dakota are routinely processed and approved within 7 to 14 business days. To ensure your will and self-proving affidavit comply strictly with North Dakota statutes, consider consulting a local estate planning lawyer from our directory on this website.

Frequently Asked Questions (FAQ)