In New York probate proceedings, an affidavit of comparison is a critical document that authenticates the will being admitted to probate. This certification confirms that the document presented to the Surrogate's Court is a true and accurate copy of the original will. Though it may sound like a small procedural detail, the affidavit of comparison serves an important legal function: it prevents fraud and ensures that the will presented to the court matches what the decedent actually signed.
This guide explains what an affidavit of comparison is, who prepares it, what it certifies, and why New York courts require this document as part of the probate process. Understanding this requirement helps executors and their advisors prepare proper filings in Brooklyn, Queens, and across NYC.
Definition and Purpose of the Affidavit of Comparison
An affidavit of comparison is a sworn statement (affidavit) in which a witness certifies that a copy of a will is a true and accurate reproduction of the original will. The affiant (the person making the affidavit) — typically an attesting witness to the original will — compares the copy being filed with the Surrogate's Court to the original and confirms that they match.
The purpose is straightforward: the Surrogate's Court needs assurance that the will presented for probate is authentic and hasn't been altered. By requiring an affidavit of comparison, the court creates a paper trail of authentication. If a will is challenged later as fraudulent or forged, the court has a sworn statement verifying its authenticity at the time of probate.
This is particularly important in New York because the original will is typically deposited with the Surrogate's Court as part of the probate process. The court holds the original and maintains it as part of the court record. What beneficiaries and the executor work with is typically a certified copy. The affidavit of comparison bridges the gap: it confirms that the certified copy matches the original.
Who Prepares and Signs the Affidavit of Comparison?
The affidavit of comparison is typically prepared by the executor's attorney (or by a self-represented executor, though this is less common). However, it must be signed by an attesting witness to the original will.
Attesting witnesses are individuals who watched the decedent sign the will and signed the will themselves to authenticate it. Under New York's EPTL (Estates, Powers and Trusts Law), a valid will typically requires two attesting witnesses. Both witnesses should ideally sign the affidavit of comparison, confirming their presence at the will's execution and their ability to recognize the original.
If one or both attesting witnesses are unavailable (perhaps they've moved away or are deceased), the court may accept an affidavit of comparison from other individuals who have knowledge of the original will's authenticity, though this is less ideal. In some cases, if neither attesting witness is available, the court may waive the affidavit of comparison requirement if other evidence of the will's authenticity is presented.
The affiant must swear or affirm under oath that the copy being filed matches the original. This oath makes the affidavit a legally binding statement; signing falsely constitutes perjury, a serious crime.
What the Affidavit of Comparison Must Certify
A proper affidavit of comparison must cover several specific elements:
- Document identification: the name and address of the decedent, the date of the will, and any identifying information (page numbers, number of pages, etc.).
- Personal knowledge: the affiant has personal knowledge of the original will, typically meaning the affiant was present when the will was executed or has otherwise examined the original document.
- Accurate comparison: the copy being filed with the court is a true and accurate comparison to the original. The affiant should describe the comparison performed: "I have carefully compared the attached copy to the original will and confirm that it is true, accurate, and complete."
- Completeness and condition: If the original will had multiple pages, the affidavit should confirm that the copy includes all pages. If there were any corrections, strikeouts, or annotations on the original, these should be noted.
- Proper execution: the affidavit must be dated, signed before a notary public or other authorized officer, and include the affiant's printed name and address.
When the Affidavit of Comparison Is Required
New York requires an affidavit of comparison when filing a petition to probate a will with the Surrogate's Court. It's a standard document accompanying the probate petition and the will itself.
However, there are exceptions. If the original will is being filed with the court (not just a certified copy), an affidavit of comparison is unnecessary. Some executors choose to file the original will directly with the petition, avoiding the need for an affidavit.
Additionally, if the will is very recent (executed shortly before the decedent's death) and both attesting witnesses are readily available, they may simply appear in court to testify regarding the will's authenticity rather than submitting an affidavit. However, this is uncommon; most estates use written affidavits.
Self-proving wills — wills that include a self-proving clause with sworn statements from witnesses at the time of execution — may reduce the need for an additional affidavit of comparison, though courts typically appreciate having one anyway.
Common Issues and How to Avoid Them
One common problem is unavailable attesting witnesses. If both attesting witnesses have passed away or cannot be located, the executor faces a dilemma. Solutions include locating other individuals with knowledge of the will's authenticity, obtaining an affidavit from the attorney who drafted the will, or obtaining testimony from family members who saw the will executed. In challenging cases, the court may require additional evidence of authenticity.
Another issue is incomplete or inaccurate affidavits. If an affidavit fails to adequately certify that a copy matches the original, the court may reject it and request a corrected affidavit. To avoid this, ensure the affiant carefully compares the copy to the original before signing.
A third issue is improper execution of the affidavit. Affidavits must be notarized or sworn before an authorized officer. An un-notarized affidavit won't be accepted. Ensure the affiant appears before a notary and the affidavit is properly dated and signed.
Finally, some executors fail to locate the attesting witnesses early enough, causing delays. Once probate is initiated, move quickly to secure affidavits from attesting witnesses while they're still accessible and the will's execution is relatively fresh in their memory.
The Role of Your Estate Team
Your estate team typically handles preparing the affidavit of comparison as part of the probate petition. The professionals you work with will draft the affidavit, identify appropriate attesting witnesses, and arrange for them to sign and have the document notarized.
An experienced team knows what details courts expect in affidavits and can draft one that will sail through court review without requests for amendment. Conversely, a poorly drafted affidavit may cause unnecessary delays.
If you're representing yourself, you can prepare an affidavit of comparison using court forms or sample templates, but ensure you follow New York court rules carefully. When in doubt, get expert guidance; the cost of a brief consultation is far less than the cost of delays caused by an improper filing.
How Keystone Pinnacle Can Help
Whether you're navigating an estate property sale, exploring investment opportunities, or need guidance through a complex real estate transaction, Keystone Pinnacle Property Advisors is here to help. Our team specializes in guiding families through the real estate aspects of estate settlement throughout Brooklyn, Queens, Nassau County, and the greater New York area.
Contact us today for a free consultation, or call (516) 703-6942 to speak with an advisor.
