Posted by Cari on 10/7/09 12:38pm
Msg #306478

okay, watched Oprah today...(things are slowwww) and,

perhaps this is not the proper forum...but on the show was the daughter of the folks that were horribly murdered in their home a few months back; the couple that had adopted 7 or 8 kids with severe disabilities...and now the daughter and her husband moved in and took over...(bravo)

The daughter mentioned that her mother's Will was declared invalid because it was not witnessed properly!

I felt horrible for her. So now, her and her husband,, who work full-time jobs, are paying off two mortgages (there home and now her parent's) paying for all the bills, all the while waiting for the courts to settle her parents estate in Florida.

Question: who could've screwed this up...do you think it was the notary (or the attorney if involved) or both?

Reply by Jess/CT on 10/7/09 12:42pm
Msg #306479

Wow, I just turned down notarizing a will yesteday.
Before doing so, I read this forum and my CT handbook, both discourages notaries from notarizing will of you are not familiar with them, which I am not.

I would hate to be responsible for putting someone in this situation.

Reply by Linda_H/FL on 10/7/09 12:46pm
Msg #306481

If this is true, could have been any number of things but some of the blame has to fall on the husband and wife themselves - these were not stupid people - if what I've heard is accurate they had everything set up correctly and legally as far as the house, their finances and the adoptions were concerned - why would they not take care to make sure things were in place should something happen to them. I'd hate to think they resorted to a DIY for their wills, one of the most important documents they'll ever sign, but I suppose anything is possible.

Reply by PAW on 10/7/09 1:16pm
Msg #306483

Ultimately, the testator is responsible. However, unless this was a non-attorney prepared Will, they are the only ones that can be blamed. Often, if Wills are witnessed they are not necessarily notarized, depending on state laws. If a notary was involved, then the notary should have known how the witnesses need to sign and where. If the Will was attorney prepared, the attorney should have made sure that the Will was properly executed and witnessed.

The Wills that I do here in Florida, are usually attorney prepared, require two witnesses (not including the notary nor family members or anyone who may benefit from the instrument) and the testator's and witnesses signatures are all notarized.

Reply by Sandra Clark on 10/7/09 1:39pm
Msg #306484

So very sad............I never touch wills for that reason - most of the ones I have been asked to do are those that are self-prepared. I always suggest they consult with a lawyer to be sure all of the state requirements are met.

Reply by GA/Atty on 10/7/09 1:47pm
Msg #306486

Lesson: Do NOT do a will without an attorney!! It's crazy!!

How folks try to save money with legalzoom.com or buying form deeds from Staples is beyond me.

If you are doing a will or transferring an interest in real property, doing a power of attorney or incorporating or forming an LLC...... and if you care that it is done correctly..... get an attorney by all means! It's worth it!

Reply by Linda_H/FL on 10/7/09 2:12pm
Msg #306487

Agree 100%... n/m

Reply by Cari on 10/7/09 2:33pm
Msg #306492

Legalzoom and the lot...ugh! I truly dislike these services

and get a bit nervious when I get calls from folks needing Wills or POA's notarized, because I know that they most likely got the docs online or from an office supply store. And I agree with you GA/Atty.

Although I'm an independent paralegal and have created about 1 or 2 Wills a year, I've ALWAYS had an attorney back my docs up by taking a quick looskie, just in case.

But man, when I'm wearing my notary hat, and see questionable sections, I have to keep my mouth shut because of UPL, it is truly so hard to stay quiet.

My heart goes out to these folks who lost their lives to a bunch of evil folks, somehow tied to the Mexian Mob if you could believe it. If anyone wants to make a donation, visit oprah.com site for more information.

Reply by JanetK_CA on 10/7/09 3:05pm
Msg #306499

Re: Lesson: Do NOT do a will without an attorney!! It's crazy!!

Sadly, I think for many folks the decision is not between whether to use an attorney or not, but rather whether to do something they think they can afford vs. doing nothing at all. A lot of people probably choose to do the "affordable". Correct or otherwise, many people automatically believe that an attorney's time is prohibitively expensive, even though it can cost them much more in the long run. It's about current cash flow -- something most of us can probably relate to! I have no idea if this was an issue with the folks in question.

Just for general info, in CA, wills aren't notarized - at least not any I've seen prepared by the several estate planning attorneys I work with - just witnessed. I'm usually the second witness and the attorney is the first (if the signing is done in their office). One attorney I work for also has a third witness sign (sometimes his secretary), just in case. Probate in California is also such a huge headache that most experts highly recommend that people with any assets have an estate plan and living trust. Unfortunately, most of the attorney's I know charge well over $2,000 to complete one. Out of reach for many.

Naturally, as we hopefully all know, all state laws will vary on this.

Reply by LKT/CA on 10/7/09 7:35pm
Msg #306554

Does anyone know....

....what the reasoning behind not notarizing a will? How can notarizing the testator's signature invalidate the will? Just wondering.....how can anything a notary does invalidate anything? Why would two schmoes off the street be able to witness a signature of a testator yet, a state public officer's seal and signature invalidates the will....

OOoooo, wait and minute.....an epiphany! Notary = state public officer, probate deals with the state........ conflict of interest, perhaps? Am I on to something?

Reply by PAW on 10/8/09 7:52am
Msg #306602

Re: Does anyone know....

I don't understand the logic either, how a notarized signature can invalidate any document, much less a Will. Of course, sometimes there just isn't any logic behind some statutes and codes in today's society. They simply must be enforced, logical or illogical.

I can almost understand the issue about holographic (handwritten) wills. According to CA Probate Code, a holographic will, is a will completely in one’s own handwriting that is signed and dated. This document does not need to be notarized or signed by witnesses; however, any typed material may invalidate the will. Holographic wills are not valid in Florida unless they comply with Florida statute 732.502, even if they were valid in another state when created.

Reply by Maureen_nh on 10/7/09 11:49pm
Msg #306595

Re: Lesson: Do NOT do a will without an attorney!! It's crazy!!

I will not do a will unless it is prepared by an attorney. My little CYA. I just tell them it is my policy and has nothing to do with state law.