Reply by Harry [NR] on 8/25/05 4:21am
Msg #61596
Re: Notarizing a Will or Living Trust in CA [VERY LONG]
If you read the California statutes pertaining to notaries (nearly all of which are at the back of the handbook), you will not see any reference to wills nor the California Bar. Not to discount the need to properly prepare a will, especially in light of the implications of a having a deficient one, but it seems the advice in question (the Handbook reference), while good and very applicable in most cases, may not apply in all cases and could be interpreted partly as a “plug” for California attorneys.
Consider the fact that there is a lot of adequate software on the market to assist people with the preparation of their own wills. Broderbund's WillWriter Deluxe 2005 is a case in point. If your estate is not overly complex and you're savvy enough to run the application, you're going to pay $29.99 for the software. Of course, here is their caveat:
"This program is not a substitute for the advice of an attorney. This program provides forms and information about the law, and suggestions on how to use the program. The program cannot and does not provide specific advice for your exact situation, and it cannot decide whether the program’s forms are appropriate for you. Because the program cannot decide which forms are best for your individual situation, you must use your own judgment and, to the extent you believe appropriate, the assistance of a lawyer."
Alternatively, if you know exactly what you want but are not comfortable preparing your own will, you can have a Legal Document Assistant do it in California. Like notaries, they CANNOT offer advice, but they can potentially save you a bundle of money in the preparation of many legal documents, wills included.
It seems it really boils down to a judgment call. Unless I’m overlooking something, there are no absolutes. If the requestor is very confident their will has been properly prepared and is insistent on having you notarize, you should consider it. In fact, it MIGHT be your DUTY. Consider this Handbook excerpt:
"...it is the duty of a California notary public to notarize upon request any properly submitted document for any person, upon receipt of applicable fees, anywhere in the State of California."
This is supported by Section 6110 of the Government Code, which states:
"Upon payment of the fees required by law, the officer shall perform the services required. For every failure or refusal to do so, the officer is liable upon his official bond."
While these are simply my opinions, consider this wildly-contrived story:
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Begin Harry’s Fictitious Story *
Life, Love and Duty
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It’s Friday night and Jim is in a severe car accident. Upon regaining consciousness Saturday morning, the doctors tell him he might not survive the weekend due to spleen, liver and kidney damage. Jim has no will and his nearest living relative is his Uncle Bob, on his mother’s side. James, his lifelong companion, has just arrived at the hospital.
Jim, having all of his mental faculties in order, has expressed to the hospital staff that, should he die, he would like to leave his worldly belongings to the one inspiration in his life, the person whom he cares the most about. Using James’ laptop, Jim downloads WillMaker from the Internet and proceeds to prepare his will. James takes the laptop to a nurses’ station and prints the will to a LaserJet using a Bluetooth wireless connection. Jim’s condition is deteriorating rapidly, though his doctor is still of the opinion that his mental health is unaffected and he is thinking with absolute clarity, despite his dire circumstance.
It’s Saturday, and none of the hospital’s on-staff attorneys are working. Jim asks his doctor, Tom, along with the attending resident, Bill, to witness the signing of his will. Dr. Tom suggests to Nurse Mary, Jim’s Critical Care Unit nurse, whom he knows to be a notary, that she perform the notarization - in this case, an oath wherein Jim would swear to the truthfulness of the document and Mary would complete the jurat printed at the bottom of the page. However, Mary refuses because her interpretation of the Handbook is that she is not allowed to notarize a will in the absence of an attorney. Jim dies intestate - without a will - on Saturday afternoon, just as James finishes dialing the seventh attorney’s phone number in the Yellow Pages.
When Jim’s estate reaches probate, it is determined that his net worth of $1,367,432.21 - mostly in the form of retirement savings and securities investments, along with a small number of family heirlooms - will ALL go to his uncle, Bob, who happens to be an unemployed former Enron accountant. James sues, claiming that Jim’s express wishes were that the estate be left to him. The money is held in trust pending the court’s decision.
One year, three months, and twenty-three days later, after the taking of 37 depositions of friends, very distant relatives, and hospital staff, the court decides in favor of Uncle Bob. As it turns out, Uncle Bob raised Jim from the time he was seven and was able to establish for the court that he was liked by Jim and, in fact, could have been Jim’s “one inspiration.” After careful review of hospital staff depositions, the court determined that Jim never spoke the name of his one inspiration and that, having much to gain, James could have conceivably changed the will at the nurses’ station. They had no choice but to rule in favor of Uncle Bob in consideration of intestate rules.
Six more months pass. James finally finds the courage to clean…to collect Jim’s belongings from their apartment with hopes of restoring his shattered life. He finds a small bronze key. It’s to a safe deposit box at the local Bank and Trust. James rushes to the box, thinking all the while about what it could possibly contain. Keepsakes? Memories? The first letter he’d ever written to Jim, some 35 years ago?
The box opens. A will. A long forgotten will. Twenty-six years old and slightly yellowed of age. Absolute, indisputable proof. Witnessed. Notarized.
The ensuing legal confrontation was for naught. In six short months, Uncle Bob had lost the entire estate in a series of ill-conceived investments in a variety of fictitious off-shore companies. He was flat broke.
Two remaining questions: Who is left to blame and who is left to sue?
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End Harry’s Fictitious Story
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* Notice: I am not an attorney and this is not legal advice. This story is fiction and all characters are products of my very tired (at this hour) imagination.
In my opinion, the bottom line is that refusal in all cases (at the request of the Bar) is probably not the right approach. It depends on the circumstance. In all cases, extreme care should be taken and your notary LAWS should be followed. In no case should you give legal advice. If the requestor has questions or you sense uncertainty, reluctance, or anything else that could be interpreted as lack of understanding or willingness, then you would have no choice but to refuse to notarize.
Again, just my $0.02 (or $1.32 as long as this ended up).
Harry
Notary Rotary, Inc.
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