Posted by Ca Notary on 12/5/04 2:08pm
Msg #12748

Living Trusts

Ca handbook says you should decline to notarize a will until after the client consults with a lawyer and the lawyer approves. Would a Living Trust be considered a will?

Reply by BarbaraL_CA on 12/5/04 3:20pm
Msg #12755

Living Trusts do have a will in them as well as a health POA and other things. I do signings for Trusts but I require that an attorney be present to represent the client and answer questions. That is the only way I will do them. It works out fine.

Reply by Jon on 12/5/04 8:08pm
Msg #12774

I normally ask the client why they are getting the will notarized, if they say my lawyer told me to, I do it. If they say I want to make it legal, or something to that effect, I don't and advise them to seek the advice of a lawyer. The rest of the Living Trust, the POA, advance directive, ect I wouldn't have a problem notarizing.

Reply by Nicole_NCali on 12/6/04 1:27pm
Msg #12817

Re: Living Trusts-don't do it

At the moment, my friend is in probate court because her father died with a living trust and no will. In the trust, her sister was designated as the trustee and because this trust gave her the authority over the estate, she assumed ownership of pieces of property. The trust was notarized by a notary and he is now being called in to court because my friends father was diagnosed with dementia prior to the trust. The trust was also drawn up by a disreputable lawyer. I don't trust them especially with so much legal ramifications.

Reply by Traci/CA on 12/6/04 3:16pm
Msg #12829

Re: Living Trusts-don't do it

I work as a estate planning paralegal for a couple of different estate planning attorneys. Maybe in some states a Will is required to be notarized but in California it is not. However Trust documents, power of attorney for health care and other documents are required to be notarized. I have never notarized a will but the trust document and other related trust documents always get notarized. It would be a red flag for me if someone asked me to notarize their will in California.

Reply by Jon on 12/6/04 4:00pm
Msg #12838

Re: Living Trusts-don't do it

The bottom line is if you are directed to notarize a will by an attorney, you must do it as long as they make a proper request and pay the required fees. We are not responsible for the content of any document, and can't refuse a notarization based on our belief that it should not be notarized.

Reply by Nicole_NCali on 12/6/04 4:17pm
Msg #12841

Re: Living Trusts-don't do it

The thing that makes me hesitate is the awareness and willingness of these elderly people. At this point, if this person has dementia or the beginnings of this, can they make an informed decsion and could this question be raised in court for the notary who notarized the documents.

Reply by PAW Notary Services on 12/6/04 4:24pm
Msg #12842

Re: Living Trusts-don't do it

Yes, a person with dementia still has frequent and long-lasting periods of awareness and complete control of their faculties. (I know this from personal experience with my father.) Whenever any documents are signed by a person with any known mental diminishing capacity, especially temporary ones, such as dementia, I recommend that the act be witnessed by at least one other uninterested party and have them so document it on the document as well as your journal. It could avoid situations like what was previously mentioned with corroborating testimony.

Reply by Jon on 12/6/04 5:20pm
Msg #12844

Re: Living Trusts-don't do it

Obviously, there may be circumstances that would preclude you from performing the notarization, my point was that we cannot refuse the notarization based solely on the fact we don't think it needs to be notarized. I normally don't know of any pre-existing conditions of mental health(or lack thereof) of any of my clients. As notaries we need to screen ALL signers for willingness to sign and apparent understanding of the document. BTW, it isn't just elderly people who draw up wills and trusts.