Posted by LaHoma Marchbanks on 3/13/06 5:01pm
Msg #104512

Will

Hi, my co-worker who is a notary just asked me this questions...wanted to get more feed back. she notarized a will for this lady already. and there two pages in there that is asking for a witness? we are wondering why she needs a witness when she already notarized for Jane Doe already...seen her ID and all. So should she get the signatures of the witness and also have them sign her journal? that's what i told her i would do.

thank you in advance

Reply by TitleGalCA on 3/13/06 5:10pm
Msg #104516

No, LaHoma

Tell your co-worker she should tell the lady to see a lawyer.

I know NOTHING about probabe law but I do believe witness' are required for a will, making sure someone is of sound mind, and all that.

Tell your friend she may have crossed the line into UPL, but that she shouldn't say anything further about the need for witness, neither should you. The lady needs an attorney.

Reply by TitleGalCA on 3/13/06 5:12pm
Msg #104518

whoops....make that probate, not probabe

I don't know squat about probabe law either. (sounds interesting though).

Reply by LaHoma Marchbanks on 3/13/06 5:17pm
Msg #104521

Re: whoops....make that probate, not probabe

thank you so much TitleGal.....i'm going to pass this over to her

Reply by SatomiCO on 3/13/06 6:06pm
Msg #104535

Re: No, LaHoma

The witnesses to a will are signing that the person whose will it is, signed the will under their own free will, were not forced or coerced into signing it and to the best of their knowledge and ability believe the person was of sound mind.

Reply by TitleGalCA on 3/13/06 6:22pm
Msg #104540

Thanks Satomi, I didn't say it nearly as well. n/m

Reply by PAW on 3/13/06 5:14pm
Msg #104519

Is this a "self-proving" will? If so, in all states (check your own statutes), self-proving wills must be witnessed by two witnesses, with one exception. In VT, the will must be witnessed by three witnesses (if I remember correctly). Additionally, the witnesses signatures are also notarized along with the testator, so the notary cannot be a witness to the will.

Reply by Harold Byrd on 3/13/06 5:43pm
Msg #104529

A notary should only notorize a will that is completed by an attorney. The wittnesses must sign the document and then the book, after that, they are no longer required to do anything. Check with your bonding company about doing wills.

Reply by TitleGalCA on 3/13/06 5:53pm
Msg #104531

That is a matter of opinion. I'm well aware of the language in the Notary Handbook of California.

The 'bonding company'? I might check with my errors and ommissions insurance, but my notary bond has nothing to do with wills.

Reply by Harold Byrd on 3/13/06 5:58pm
Msg #104533

Your E & O insurance is a bond.

Reply by SatomiCO on 3/13/06 6:01pm
Msg #104534

I've just quickly read your post, so I may be off the mark as to what you are saying. However, I have E&O Insurance, but in Colorado, notaries are not required to be bonded separately.

Reply by TitleGalCA on 3/13/06 6:12pm
Msg #104537

My insurance carrier has no opinion in the matter. n/m

Reply by John_NorCal on 3/13/06 6:21pm
Msg #104539

Re: E & O insurance is a bond?

No it isn't. A bond is issued to protect the public against the malfeasance of the person bonded, in this case the notary. In which case the bonding company can sue to recover the amounts advanced on the bond. An errors and omissions (E&O) insurance policy covers the insured (notary) for unintentional acts committed in the course of their business activity.

Reply by John_NorCal on 3/13/06 6:09pm
Msg #104536

Re: Will>>> Trying to find in the ...

handbook where it says that witnesses to a will need to sign the journal. Can't find that but I have found the following in California Probate code. There really is no mention of having a will notarized, I believe that people think when you have something notarized, it somehow becomes "legal." From what I read, a person can make up a will have it signed by 2, preferably disinterested, witnesses and hope that they have done the right thing. Maybe yes, maybe no. The best thing to do here is to RUN THIS BY AN ATTORNEY, let the attorney call the shots that's what they get the "big bucks" for.

6110. (a) Except as provided in this part, a will shall be in
writing and satisfy the requirements of this section.
(b) The will shall be signed by one of the following:
(1) By the testator.
(2) In the testator's name by some other person in the testator's
presence and by the testator's direction.
(3) By a conservator pursuant to a court order to make a will
under Section 2580.
(c) The will shall be witnessed by being signed by at least two
persons each of whom (1) being present at the same time, witnessed
either the signing of the will or the testator's acknowledgment of
the signature or of the will and (2) understand that the instrument
they sign is the testator's will.

6112. (a) Any person generally competent to be a witness may act as
a witness to a will.
(b) A will or any provision thereof is not invalid because the
will is signed by an interested witness.
(c) Unless there are at least two other subscribing witnesses to
the will who are disinterested witnesses, the fact that the will
makes a devise to a subscribing witness creates a presumption that
the witness procured the devise by duress, menace, fraud, or undue
influence. This presumption is a presumption affecting the burden of
proof. This presumption does not apply where the witness is a
person to whom the devise is made solely in a fiduciary capacity

Reply by PAW on 3/13/06 7:56pm
Msg #104579

Re: Will>>> Trying to find in the ...

John,

It is true that a will does not need to be notarized. However, if the will is to be considered a "self proving will", in some jurisdictions, then it usually is notarized. I don't have the CA statutes, but if CA allows for self proving wills, it should be in the same code section. If you don't mind, look for "self proving" and see if you can locate it. California does not require a will to be notarized, but if it is witnessed by two witnesses and all signatures notarized (testators and witnesses), the probates courts may find it easier to send it through as a "self proving" will. Some states will allow a self proving will that is notarized to basically bypass probate unless the will is contested prior to being presented before the probate court.

Reply by John_NorCal on 3/13/06 8:59pm
Msg #104594

Re: Will>>> Trying to find in the ...

Hey Paul,
Looked for any reference to a "self-proving" will and could not find any. Based on what I have always been told by attorneys, seminars, etc, all wills in California must be presented for probate. Must be the reason why doing a living trust is big business here, that is the only way to avoid probate!

Reply by PAW on 3/14/06 7:44am
Msg #104650

Re: Will>>> Trying to find in the ...

Doesn't surprise me, John. There are some states that seem to require estates to be probated no matter what. I guess the judicial society must get their share.

Reply by DellaCa on 3/13/06 9:14pm
Msg #104598

IMHO and as I have understood it yes you should direct them to a lawyer but if they don't want to they don't have to. They either need 2 witness OR it needs to be notarized.Not both I am in ca.