Posted by MRA/CA on 11/23/10 2:16pm
Notarizing Wills in California
I got a call to notarize a will. It is being drafted by an attorney for her mother and supposedly needs to be notarized. She hasn't seen it yet, so she couldn't tell me for sure if it was actually a Trust (which includes a Will) or only a Will.
I have never notarized a Will before and from memory, I do not believe we are allowed to. I have acted as a witness to Wills many times before (for someone not related to me), while notarizing Trusts.
I tried to look for a reference in the 2010 CA Handbook and Code about notarizing Wills so that I could have something to show the lady who called me, and could not find anything on the subject.
I called the CA SOS, and the lady told me to look at page 6; I was shocked to actually get an answer from them since they usually just tell me to seek the advice of an attorney when I call with a question. Unfortunately, Page 6 only talks about not being able to practice law and give legal advice. It doesn't reference Wills at all.
Can someone direct me to where it says specifically that in CA we cannot (or can) notarize Wills? Thanks.
Reply by Les_CO on 11/23/10 2:40pm
I’ve notarized the signatures of the testator, and the witnesses on many wills here in CO.
Just who would notarize the signatures on such documents if called for in CA if not a CA notary public?
Reply by JanetK_CA on 11/23/10 2:57pm
The older handbooks used to have a paragraph that said something to the affect that if a notary is asked to notarize a will, they should refer them to an attorney instead. There was never an outright prohibition against it in the handbooks (at least in the last 10 1/2 years that I've been a notary.) That entire paragraph has been since removed.
Like you, I've witnessed many a will as part of an attorney-prepared estate plan, but they aren't notarized. This could just be attorney preference. My take on it is that if the will has been prepared by an attorney, then it's not up to me to say it's wrong. Attorney's can be as wrong as anyone else, though. If I was able to talk to the attorney, unless he specialized in estate plans (and definitely if he was from another state), I might carefully mention to them that in CA, we generally don't see Wills notarized. (And I might mention that to the person presenting the will, depending on the circumstances.) However, it's not my decision and I would go ahead and notarize it.
Reply by Marian_in_CA on 11/23/10 3:02pm
Contrary to popular opinion, there is NO prohibition of notarizing signatures on wills in California. The confusion with this lies from a statement on page 13 in the 2005 handbook that read:
"The California State Bar advises that when a notary public is asked to notarize a document
which purports to be a will, the notary public should decline and advise the person requesting
the notarization to consult a member of the California State Bar. If an attorney recommends
that the document be notarized, a notary public may do so."
Note that this was NOT a rule or directive from the SoS, but an advisement from the State Bar. Also, note that since 2006, this notice does NOT appear in our handbooks. Also, you cannot find it anywhere on the State Bar's website either. Believe me, I've tried and tried.
I've called the SoS on this, and they told me that, as notaries, we are supposed to honor every legal request to have a signature notarized. They also pointed out that we are not responsible for the content of the document. They did, however, state that it cannot hurt for us to ask if they've consulted an attorney... but we cannot refuse to to notarize simply because they have not done so.
They also said that, unless we are also attorneys, we should not be telling them anything about how a notarization could impact the will because that constitutes giving legal advice.
While we cannot suggest it, the format I see most often is a separate document/statement wherein the person (and witnesses) acknowledges creating and or witnessing the will, and THOSE signatures are notarized, but not on the will itself. For them, it seems as it they are notarizing the will, when in fact, they're not. But it's a technical issue.
The point being... even though notarizing a signature on a will *may* invalidate it, we're not allowed to advise people of that, nor are we allowed to refuse their legal request.
Reply by Les_CO on 11/23/10 3:36pm
I did a little checking…Not as much as Marian, so I'd go by what she says.
My opinion is if this will is being drafted by an attorney, and you are being asked by the attorney to notarize the signatures of the testator, AND the two witnesses, there should be no problem. Wills do not require that the signatures be notarized in CA. I think the big thing is the two witness requirement, and someone at the CA SOS, is warning notaries that the notarization of the signature of the testator alone does nothing to make the will valid or legal. Except in the case of a holographic will two people must witness the testators signature, regardless of any notarization. Maybe Check CA Probate code 6110-6113
Reply by JanetK_CA on 11/23/10 4:43pm
None of this is our concern
I just re-read the original post and got the impression that the requestor hadn't yet received the document. I think it's very possible that the person may have assumed that a notary would be needed, when in fact, that may not be the case.
To OP: before you finalize an appointment, you might want to suggest that she confirm with the attorney about what will be needed to finalize the document, witness(es), a notary or both.
Reply by Marian_in_CA on 11/23/10 5:17pm
Re: None of this is our concern
That's the best idea, I think. There's always a way of inquiring about the source of the documents without getting in to advice.
That said, though, if they insist on it and they have proper ID... there's nothing preventing us from notarizing the signature. The content of the document is none of our concern and if the notarization makes it invalid, then that's hardly our fault since we're just following our duty to oblige a legal request for notarization.
Reply by MRA/CA on 11/24/10 12:22pm
Re: None of this is our concern
It is a concern because I was all ready to decline saying that we are not allowed to notarize wills. She said she needed to have her mother's will notarized, and was waiting to receive it from a lawyer. When I asked if it was a Trust or just a Will to find out how many signatures, she really didn't know what she was getting. I told her to check back with the lawyer as to exactly what was needed, including witnesses, and that way I could check about notarizing Wills. I haven't heard since, but I am glad I checked first before declining outright.
Reply by MRA/CA on 11/24/10 12:11pm
Thanks, Marian / All, for your answers. I remember being trained, way back when, that we were not allowed to notarize Wills in CA. It was only because I was asked to do one just recently for the first time, that I wanted to verify first before accepting or declining, and I couldn't find where it actually said we couldn't. I wanted to make sure that the laws hadn't changed through the years and I had missed the udpate on this one. Glad to know it wasn't my memory playing games on me and it was actually mentioned in the 2005 Handbook. Thanks for your research.