Posted by Traci/CA on 12/6/04 3:21pm
Msg #12830

Notarizing a Will/for CANotary

Must I Have My Will Notarized?
QUESTION:


When you make out a will, do you need to have it notarized?




ANSWER:

Glad you asked. Your question is on the tips of the minds of a great number of people. To be valid, a will must be legally executed. This is not as bloody as it sounds. It means only that you must sign your will in front of witnesses. These witnesses must not only sign the will in your presence, but also in the presence of all the other witnesses. Nearly every state requires two witnesses to a will -- with the exception of Vermont, which requires three.

Today, most states allow people to make their wills self-proving -- that is, they can be admitted in probate court without the hassle of herding up witnesses to appear in court or sign affidavits verifying that a person making a will seemed of sound mind and all when the document was signed. This is accomplished when the person making the will and the witnesses all appear before a notary public and sign an affidavit under oath, verifying that all necessary formalities for execution have been satisfied. Perhaps this is where all the confusion about notaries and wills comes in -- although it is more likely that folks just assume that a document as powerful as a will should be notarized to somehow give it a more legalesque aura.

In California, where you live, the self-proving feature does not require a separate affidavit. Instead, the fact that the witnesses sign the will under the oath printed above their signatures is sufficient to have the will admitted into probate, unless a challenge is mounted. There is no need to take further steps to make a California will self-proving. And notaries in your state have been known to become confused or surly when presented with a will. There's no need to involve them in your willmaking process.



Copyright 2002 Nolo, Inc.

Reply by Terri - CA on 12/6/04 3:32pm
Msg #12834

Unless instructed to do so by an attorney, California Notaries are not to notarize wills.

Reply by PAW Notary Services on 12/6/04 4:16pm
Msg #12840

Please correct me if I'm wrong. California, like FL, does not specifically state that a notary cannot notarize a will. However, it is recommended that only attorney prepared wills be notarized. From what I read in the 2004 CA handbook:

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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 may do so.
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Which appears to me to be an "advisory" that one should not perform the notarization without an attorney's recommendation.

Reply by Terri - CA on 12/8/04 8:23pm
Msg #13053

Hmmm I think I said that?

"Unless instructed to do so by an attorney, California Notaries are not to notarize wills."

Reply by HisHughness on 12/6/04 6:40pm
Msg #12855

Under certain circumstances, notarizing a will can actually render it inadmissable. If a will requires two witnesses, for example, and one of those witnesses is a notary public, and for some reason the notarization is invalid, then the will cannot be admitted to probate.