Posted by Isabel/CA on 9/12/11 5:53pm
Msg #397153

California and wills

I know in the state of CA, a true will does not usually need to be notarized. I've had several situations where I've been called requesting to notarize a will along with POA. I had one the other day where I asked the woman if she had consulted with an attorney before calling me for the notarization. She said , yes, yes, all she needs is me to notarize her father's sig. When I showed up she had a simple will typed up and had two spots for witnesses. Who knows if she ever talked to an atty at all.

I'm very careful not to EVER offer legal advice on any of my appointments. I always enter an appointment with the standard, "As a notary, my role is to witness and notarize your signature. I cannot advise you how to fill out forms, etc. etc."

But sometimes I feel uneasy about it. I don't sit there and read the entire doc to see if its actually an AHCD(living will) or truly a will. If the notarial language is not there, I will ask the client which they need. USUALLY, its a situation where its a health care thing, but again, I don't read the whole doc.

I'm just curious as to others thoughts on the matter.

Reply by Notarysigner on 9/12/11 6:40pm
Msg #397155

What is it that you want to know? I do wills all the time, usually it is me and the attorney signing as witnesses...NOT Notarized.

If an attorney suggest to the client that the will be notarized then That would be Okay. If a notary doesn't know about wills and how they can be invalided by the notarization, I would just follow the attorney's instructions and not do anything on my own ...just cause.! IMO

Reply by Isabel/CA on 9/12/11 7:16pm
Msg #397157

I've never done a will where there was an attorney present. That's the issue for me I guess. I've notarized many living wills where it looks like its basically a health care directive.

My uneasiness is when the client seems to have drawn up the document on their own and are asking me to notarize. They can SAY they've consulted with an attorney, but really how would I know?

Reply by LKT/CA on 9/12/11 7:42pm
Msg #397159

A will in CA is witnessed by two ***neutral third party** persons. These witnesses are not named in the Will, nor are they beneficiaries or heirs. Attorneys don't have to be present when Wills are witnessed. I've notarized only one or two Wills where the clients say their attorney recommended it and in those cases, the Wills themselves were created by that attorney.

I notarize for an estate planning attorney when the client requests mobile notary services, particularly on the weekends. I notarize the Trust documents and I'm one of the witnesses for their Wills. They usually have a neighbor be the 2nd witness. People can type their Wills themselves, if they choose.

Reply by JanetK_CA on 9/13/11 12:02am
Msg #397176

Are you're saying that you show up when someone requests a notary for a signing of a will, and find out they just need witnesses, but not a notary? As for whether it's an Advanced Directive or an actual Will, a look at the first page is all you need. That information needs to be recorded in our journals anyway.

What I usually do with requests like these - and many others - is ask them if there's any verbiage above the notary signature and if there is, to read it to me to find out which type of notarization is needed. If there isn't any, we can then discuss their two options, if it's a document that typically does get notarized. If it's a Will and there's no notary language, they usually figure out that they only need two witnesses. I'm happy to be one of them, but they would need to pay my service fee to travel to them and/or sit and watch the principal sign it. Either way, we find out before I start my car. The POA, of course, WOULD need to be notarized.

BTW, I usually advise them ahead of time that the document needs to be complete before I can notarize it. I want that taken care of before I get there. General Notary work is only a good deal when you can get in and out and move on. I'm happy to spend a little more time on the phone with someone in advance to prevent a lot of confusion or delay when I actually meet with them. Most people appreciate it. Some take the info in and then I never hear from them again. (I'm assuming they find a notary somewhere else.) So be it.

Reply by Isabel/CA on 9/13/11 6:50pm
Msg #397250

Thanks Janet.

Here's the recent situation:
Woman calls & says she needs notary for POA and will for her father. During phone call, I ask her if she has spoken to an attorney as an attorney could advise her as to whether the will needs notarization. I tell her the POA is no problem. She says she did speak to an attorney and she wants it notarized. I give her my fee and show up.

Upon getting to appt, she is there with her father and a neighbor. I give her my normal intro regarding not being an attorney and my role as notary. The neighbor seems to be advising her. She wants her father's sig on will notarized along with the POA. Since there was no notary language on doc, I ask her which of the two she is needing. She looks to the neighbor who chimes in and says she needs Jurat. I did mention again that an attorney could help her decide if she was unsure.

As a notary, who am I to advise her that she probably doesn't need it notarized at all? I try to never give that type of advice. If it was UNLAWFUL for me to do it, I would definitely refuse. But since its not.... It just makes me uncomfortable sometimes.

Usually, its not a problem. As you mentioned, usually if there is no notary language, people realize its not something that needs a notary.

Thanks again for your response. I value your input.

Reply by LKT/CA on 9/13/11 7:12pm
Msg #397253

<<<As a notary, who am I to advise her that she probably doesn't need it notarized at all? >>>

You are misunderstanding, Isabel. The standard procedure for Wills is that they are witnessed by two neutral third party persons and not notarized. That's the way they are handled, so it's not about you *advising* someone that their Will doesn't need notarizing. Wills just typically are not notarized.

Wills *can* be invalidated if they are notarized and not witnessed.

<<<She wants her father's sig on will notarized along with the POA.>>>

Customers cannot have what they *want* when it comes to procedure. They get the proper procedure for the document presented.

Reply by Isabel/CA on 9/13/11 10:13pm
Msg #397281

Yes, I understand that typically wills are not notarized. In the situation described, the woman said she did consult with an attorney and needed it notarized. IMO, if I were to tell her that she didn't need it notarized, that could be construed as advising her not to. I'm not walking down that road.

You are right, though. Customers cannot have what they "want" when it comes to procedure. However, if its not against CA notarial law (which it isn't) and she has stated that she did consult an attorney, I'm not going to talk her out of it. I guess I could refuse to notarize it based on the murky waters of the matter.

Thanks for your input.

Reply by Linda_H/FL on 9/13/11 7:30pm
Msg #397256

Re: California and wills....I would think

that perhaps just the fact that a notarization of a will in CA without the proper number of witnesses could invalidate the will would be sufficient grounds to refuse to notarize .... tactfully....or tactfully try to talk her out of it.

Are two witnesses required in CA? If so, who was the second witness? And most times the notarization is of the witnesses' signatures, not the Testator's - it's a self-proving affidavit - precludes the notary from being a witness - possibly also precludes any heir at law.

MHO

Reply by LKT/CA on 9/13/11 7:43pm
Msg #397260

Re: California and wills....I would think

Yes, two witnesses are required. Any two neutral third party persons - one could be the notary, the other could be anyone......or the two witnesses can be anyone so long as they are a neutral third party (unrelated by blood, marriage, or adoption). The witnesses can be strangers grabbed off the street - they do not have to know the testator.

I've never notarized witnesses signatures. I've notarized the testators signature on recommendation by their attorney who drafted up their Will.

Reply by LKT/CA on 9/13/11 7:56pm
Msg #397262

Oops - "drafted".....not "drafted up" n/m

Reply by Linda_H/FL on 9/13/11 8:59pm
Msg #397266

The self-proving affidavit is where the witnesses

swear they witnessed the will and signed as witnesses in front of the Testator and at his request - prevents witnesses having to appear in court later on down the line when the Will hits probate. May be state-specific but I've seen them in FL and CT...

Reply by JanetK_CA on 9/15/11 4:13am
Msg #397425

To me, UPL happens when I start talking about what is and isn't required as a blanket statement. I think it's a different story, though, if I just state facts, for example, that when I assist attorneys with estate plan package signing, the wills I see don't get notarized but they do get witnessed by two unrelated witnesses - and I make sure they understand that I'm only stating an observation, not giving legal advice. In your situation, my guess would be that either the attorney was from out of state or there wasn't really an attorney, she just pulled it off the internet somewhere. (I could be wrong, though - or it could have been done by an attorney who doesn't usually deal with estate planning.)

What jumped out at me from your comment above, though, was that at the appointment, you were talking to the daughter and the neighbor about what the FATHER was going to sign. I would be wanting to know what HE thought - partly to be comfortable that he was capable of "willingly" signing both documents, especially the POA, which *would* require me to notarize his signature.