Posted by ColleenCA on 1/31/08 2:20pm
Msg #233355

Classic Case Of How A Notary Can Really Mess Things Up...

I won't go into great detail, but my mother-in-law passed away in July and we are, unfortunately having to fight my husbands sister in court because she and her husband are squatting in my mother-in-laws condo. To make matters worse, she had two trusts and two wills, each two years apart. They all state the same thing except that the 2004 trust has the daughters name hand written in. Anyway, the 2002 will that we need to use to probate some other property in Nevada was NOTARIZED, not witnessed rendering it invalid. Because of this, we may have an issue as to the 2004 will and it's connection to the 2004 trust. All very complicated, but it's just a classic example of another notary not knowing their notary laws.

Reply by LisaWI on 1/31/08 2:40pm
Msg #233364

Re: Colleen, Question for You

Is it California law that a Notary provide witnesses to a will or that they make sure the signers have witnesses? Just curious. And were these documents prepared by a lawyer, or was it one of those DIY Will/Trust packages?

Reply by LKT/CA on 1/31/08 3:10pm
Msg #233380

Re: Colleen, Question for You

For CA, a will must be notarized at the recommendation of an attorney. I notarized the signatures on a Will, included with that was a Living Trust, Medical Directives and other paperwork - the docs were so thick they were in a binder. An attorney was at the table. And they did have two witnesses sign paperwork. It was 8 Ack's plus a travel fee. That was a nice hour spent.

Reply by JanetK_CA on 2/2/08 1:05am
Msg #233752

Re: Colleen, Question for You

I've notarized many trust packages (nearly always in a binder), but not in any of them was the Will one of the documents notarized. I bet if you went back to your journal, you'd find that to be the case in your situation, as well. And usually it is the attorney and I who do the witnessing.

Reply by WDMD on 1/31/08 2:40pm
Msg #233365

"All very complicated, but it's just a classic example of another notary not knowing their notary laws. '

Here in Maryland there is nothing in the notary handbook to indicate that a notary should not notarize a will. I have learned from here and talking to attorneys that it isn't a good idea to do it, but I would not have known otherwise. Whenever I get a call from someone wanting a will notarized I always direct them to consult an attorney first, so that they would make sure the will would be valid.

Does CA handbook tell you not to notarize wills?

Reply by WDMD on 1/31/08 2:45pm
Msg #233368

"Here in Maryland there is nothing in the notary handbook to indicate that a notary should not notarize a will. I have learned from here and talking to attorneys that it isn't a good idea to do it, but I would not have known otherwise. Whenever I get a call from someone wanting a will notarized I always direct them to consult an attorney first, so that they would make sure the will would be valid.

Does CA handbook tell you not to notarize wills?"


Let me restate. Not notarizing a will, but SIGNATURES on a will. LOL

Reply by Therese on 1/31/08 4:10pm
Msg #233394

Good Point WDMD. There is nothing in the CA 2007 handbook that states that a commissioned notary cannot notarize the signatures on a will. However when I called CA's SOS about this same issue awhile back their response was:

There was no law that says that a notary public cannot notarize signatures for a will but they would advise to only to do so on the advice of an Attorney and if possible have the Attorney put instructions in writing. This would be to cover your own ***.

Reply by Linda_H/FL on 1/31/08 2:46pm
Msg #233371

I have a question too..

If there's a 2004 will, doesn't that render the 2002 will null and void? I don't know CA law but most of the wills I've seen have wording that the provisions of the current will supersede any previous will made.

I guess I don't understand why the 2002 will is even in play here...

Reply by LisaWI on 1/31/08 2:52pm
Msg #233373

Re: I have a question too..

I know here in Wisconsin for the most part, that if a person was to take their DIY forms down to the local Clerk of Courts, the notary would sign and stamp. I would lay money they wouldnt second quess if that Will or Trust needed witnesses or question the document that didnt have witnesses. Wills here do require 2 witnesses, but there isnt any law that says the Notary needs to know that or make sure the document contains the 2 witnesses. The document maker/signer is responsible for that.

Reply by Linda Spanski on 1/31/08 3:00pm
Msg #233377

CA wills

In California,also, 2 witnesses are required when signing a will. I have been asked by individuals to notarize their signature on a will and declined if there was not notarial wording already on the document.
The only wills I've seen that meet that requirement were prepared by attorneys and were done at the request of, or in the presence of, an attorney. I tell folks that a notarization could invalidate their will and to seek legal advice to protect themselves.

Reply by MikeC/NY on 1/31/08 4:03pm
Msg #233391

Re: I have a question too..

The way we do it in NY is that the signatures on the will itself cannot be notarized; however, we have what's known as a self-proving affidavit. The witnesses swear before a notary that they witnessed the execution of the will; that affidavit is attached to the will, and when it comes time for probate the court doesn't have to track down the witnesses to verify that they actually witnessed it.

Reply by MikeC/NY on 1/31/08 4:00pm
Msg #233390

Re: I have a question too..

<< If there's a 2004 will, doesn't that render the 2002 will null and void? >>

Good point - I was wondering the same thing myself. I think usually it's as you say, but there could be a problem if property mentioned in the earlier will isn't mentioned in the later one. And the issue with a name being hand-written in on the second trust sounds like it could be a nightmare...

Reply by Linda_H/FL on 1/31/08 4:55pm
Msg #233406

Agreed, but no matter how you cut it

"but there could be a problem if property mentioned in the earlier will isn't mentioned in the later one"

May have been an oversight but, regardless, if the property isn't mentioned in the new will you can't just go to the old will and say "oh, wait, here it is...use this one". I don't believe that will has any bearing on anything. Maybe it can be used to give the court a hint as to the owners' intent, but the property itself has to run through the estate as an asset of the estate....I think....in CA...

JMO, not a lawyer, etc., etc.,...and boy do they need a lawyer.

Reply by MikeC/NY on 1/31/08 7:24pm
Msg #233428

Re: Agreed, but no matter how you cut it

<< May have been an oversight but, regardless, if the property isn't mentioned in the new will you can't just go to the old will and say "oh, wait, here it is...use this one".>>

Yeah - if the second will supersedes the first one, nothing in the first one counts any more. It's up to probate court to decide.

The original point was that the notary invalidated the first will; I don't think that matters since there was a subsequent will, but that notary clearly didn't know what he or she was doing. I think the bigger problem is the trust, since that doesn't go through probate.

Reply by Linda_H/FL on 1/31/08 7:29pm
Msg #233430

Ahh...no..but the property goes through the trust maybe? n/m

Reply by MikeC/NY on 1/31/08 8:38pm
Msg #233441

Re: Ahh...no..but the property goes through the trust maybe?

If that property was moved into the trust - yes.

But there's a name handwritten on the second trust document - whole other can of worms...

Reply by Linda_H/FL on 1/31/08 9:36pm
Msg #233455

I know, Mike...oy.. n/m

Reply by sue_pa on 1/31/08 3:01pm
Msg #233378

sorry but I don't blame the notary - the blame is with your mother-in-law for not having her affairs in proper order.

Anyone that doesn't use an attorney for estate planning is nuts. If she did use an attorney, then you should be going back to him/her to find out, as someone else stated, new documents didn't void older ones - standard language, at least in PA.

Reply by ColleenCA on 1/31/08 4:42pm
Msg #233403

Re: California Law Requires.....

2 witness signatures on a will. As I said in my original message, I cannot explain the entire situation here because it would take up 2 pages it is that complicated. My point is that the notary should have known better. My mother-in-laws mental capacity was an issue as well and this has something to do with the entire case. But this one factor has put a "kink" in the probate process in Nevada.

Reply by janCA on 1/31/08 5:00pm
Msg #233407

Re: California Law Requires.....

as Colleen stated, two witness signatures on a will (a pour over will) but not notarized. The Affidavit of Trust and Certificate of Trust are notarized. The notary can be one of the witnesses.

Reply by ColleenCA on 1/31/08 5:23pm
Msg #233413

Re: Right On The Money JanCA, Thank You n/m

Reply by Sylvia_FL on 1/31/08 8:04pm
Msg #233436

Re: California Law Requires.....

Is there something in CA notary laws that specify a will has to have two witness signatures?
A notary does not necessarily have to know laws regarding witnesses on documents, they should be familiar with notary laws though.

I will only notarize signatures on wills if they have been drawn up by an attorney.

Reply by Terri_CA on 2/5/08 7:58pm
Msg #234183

Re: California Law Requires.....

Ok, I may get beat up here, but here's the reality. Colleen, first I can certainly empathize with what you may be going through, just lost my mother in law unexpectedly last week. However, that being said...

There is NOTHING in CA notary LAW which PROHIBITS a CA notary from notarizing wills. A notary's responsibility is to certify that the signature on the document belongs to the person who presents themselves to the notary and requests a notarization.

Yes, a Notary who notarizes a will can invalidate the will, but this is not anywhere in CA notary Law, and unless an Attorney TELLS a notary this, they wouldn't necessarily know it. There is nothing in NOTARY law that REQUIRES the Notary to know this.

Having taught Notary Exam Education here in CA, one of the items I covered was the notarization of wills and did encourage all students NOT TO, because it could invalidate it. However, to refuse a LAWFUL notarization request, was illegal. Notarizing a will isn't. Again, I did suggest that they may want to seriously consider not doing so. Especially the class that I had an attorney who prepared them and told the whole class to do so would invalidate a will in CA. I can't speak for other instructors or preparers of CA notary Exam materials.

I believe it's already been said, the person who should be blamed is the person who may have directed your mother to have the document notarized. Don't blame the notary for being unaware of the issue, it's not a requirement for them to know in order to perform lawfully.

I wish you good luck with your situation. This doesn't make the situation any easier. Many of us do our research and learn much from each other, such as not notarizing wills. However, there are many notaries, that don't frequent the message boards, aren't aware of them, completely oblivious, but are still performing according to the law.

Terri
Lancaster, CA

Reply by Ernest__CT on 1/31/08 5:03pm
Msg #233410

CT Wills and why some people won't notarize 'em

Nothing in this Post should be considered legal advice. I am a Notary Public, not an attorney.

Wills in CT require two witnesses.

The Manual says "A notary should only perform a notarial act in connection with a will if the instrument specifically provides for such act." That means to me that I must refuse to notarize a signature on a will that does not have a notarial block. Period.

The Manual continues "If a notary is uncertain as to how to perform a notarial act in connection with a will, the notary should seek the advice of an attorney or refuse to perform the notarial act. A notary public is not trained or authorized to assist persons in the execution of wills. If the testator asks the notary for assistance, the notary should refer that person to an attorney." That's clear and emphatic enough for me!

Notaries Public are warned _specifically_ in the Connecticut Notary Public Manual not to notarize a hand-written (holographic) will.

Because wills are fraught with peril if not perfectly handled by the Notary, a lot of Notaries Public refuse to notarize wills at all. Most Town Clerks' Offices have been told by their town attorney _not_ to notarize a signature on a will at all.

Because I properly identify the signer(s), follow the notarial block's instructions exactly, never, ever give _any_ advice, and give _a layman's_ test of the signers' orientation in time and space, I am willing to notarize wills. I always refuse if the principal appears _even the slightest fuzzy_ about where they are, what month and year it is, or the purpose of the document.

As ColleenCA stated, a Notary can create a nightmare.