Posted by reba on 9/28/12 8:49am
Msg #436261

Notarizing a Will

Tomorrow I notarize my first will. Notarizing a will in NY can be a bit particular. When I received the call, the questions I ask are 1) Has the will been drawn/reviewed by a lawyer? 2) Do you have the required witness affidavit? and 3) Do you have 2 (non-relative) witnesses available with current ID? I am not sure if I should have asked additional necessary questions. I'm hoping that the notaries who are more experienced with will notarizations can share with me the 3 questions you ask when you receive a call to sign a will.

Any advice, direction will be appreciated.

Thanks

Reply by CentralNY on 9/28/12 9:12am
Msg #436269

I won't do it. I have done many when in the employ of attorney's and in their offices as either the notary or the witness. This is neither here nor there but I live in a university town and the calls I get from visiting parents to notarize wills is crazy and it always smells. I just won't go there. I feel it's one of the most important things you will do so do it with an attorney. Just my opinion.

Reply by OR on 9/28/12 10:02am
Msg #436276

I do not have a problem notarizing a signature for a will or a trust.

Reply by 101livescan on 9/28/12 10:26am
Msg #436283

In CA we can't notarize a will unless an attorney specifically requests we notarize the will. I've never been asked to notarize a will.

Reply by CH2inCA on 9/28/12 10:34am
Msg #436284

We can't?

Cheryl, will you please cite where that is stated in the Notary handbook?
I believe it used to be 'recommended' that we don't, but even that has been scratched from our handbook.

Please let us know. Thanks in advance.

Reply by 101livescan on 9/28/12 11:08am
Msg #436286

Re: We can't?

You know, you're absolutely right. I refrain from notarizing will or amendments thereto. Notarzing these documents could lead us right to court if someone contests the document.

Somewhere along my path as a career notary, this statement of not recommended you notarize wills has been completely eliminated.

Where was I? Thanks for your response, sent me on discovery and I learned something new this morning.

Reply by Marian_in_CA on 9/28/12 11:50am
Msg #436297

Re: We can't?

Cheryl, the last time it appeared in our handbooks was 2005 and it wasn't even a directive from the Sec of State but a recommendation from the State Bar. It has since disappeared and, as far as I can tell, can't even be found anywhere on the State Bar's website. I've been looking for years.

That said, the practice still pretty much holds for most people. I still don't understand how notarizing a signature on a will can invalidate it. I've never understood that concept.

Reply by reba on 9/28/12 11:16am
Msg #436290

Now I am wondering if I should go through with it. They assured me the doc was reviewed by a lawyer, for which I will check--but then I often wonder why they would not just have the lawyer notarize it. Hmmm. They also have the witness affadivit...

Reply by MistarellaFL on 9/28/12 11:29am
Msg #436293

I don't understand why notaries choose not to notarize

will signatures.
Verifying identity and notarizing signatures is what notaries public DO.
The document doesn't matter to me, if it is not one of the docs FL says I cannot notarize, or if it is not a family member.
We are not responsible for the doc content...
I don't see "you might have to go to court" as a good reason, because at the end of the day, we might have to go to court for ANY of the sigs we notarize.

Reply by Marian_in_CA on 9/28/12 11:54am
Msg #436300

Re: I don't understand why notaries choose not to notarize

Honestly, I think it's hysteria as a holdover from California, when our handbooks used to have a directive about this from the State Bar. The last time this appeared was in 2005. It said:

"The California State Bar advises that when a notary public is asked to notarize a document
which purports to be a will, the notary public should decline and advise the person requesting
the notarization to consult a member of the California State Bar. If an attorney recommends
that the document be notarized, a notary public may do so."

A lot of California notary law and practice tends to filter out nationwide, and I think this is one of those things. The funny thing is, this advice has been gone from our handbooks for 6 years now.

Reply by NVLSlady/VA on 9/28/12 12:33pm
Msg #436316

Re: I don't understand why notaries choose not to notarize

Like the VA Bar saying only licensed escrow agents are "competent" to perform mortgage/real estate closings!

Soon, will there be only attorneys, no notaries??

Reply by MikeC/TX on 9/28/12 3:36pm
Msg #436342

Can't be done in NY n/m

Reply by MistarellaFL on 9/28/12 5:06pm
Msg #436349

Re: Can't be done in NY. Help me out Mike

http://www.dos.ny.gov/licensing/lawbooks/notary.pdf

I've read this particular document, and I can't find anything about not notarizing, just not preparing wills.

Not that I don't believe you, I do, but I am super-curious about this.
Can you point me in the right direction?

Reply by MikeC/TX on 9/28/12 6:10pm
Msg #436368

Re: Can't be done in NY. Help me out Mike

Early versions of that document were more specific (this one was updated this year), but both cite Matter of Flynn, 142 Misc. 7. It was that case, if I remember correctly, where the notarization of the will itself was seen by the court as a non-attorney overseeing the execution of the will, which is UPL in NY, and the will was invalidated.

NY wills are usually prepared along with a self proving affidavit. The SPA is used at probate as prima facie evidence that the will was properly witnessed, so the witnesses don't have to be located years later. If you could notarize the signatures on the will itself, you wouldn't need the SPA.

Reply by MistarellaFL on 9/28/12 6:17pm
Msg #436370

thank you!

In FL, we also notarize the testator/trix signatures, sometimes on the will, and always (from my experience) on the SPA.

Reply by 1Notary1 on 9/28/12 11:52am
Msg #436298

I don't see the problem

What's wrong about notarizing a will? You're notarizing the signatures and nothing else. I've notarized wills before and some of the things I ask are: 1) is/are the party/parties signing the will competent, 2) not under the influence of any drugs/medication, 3) they're aware of what they're signing and 4) they're doing it on their own free will. We, as notaries, are not allowed to prepare a will, but we can certainly notarize one. And Reba, no, the attorney that prepared the will cannot notarize it.

Reply by VT_Syrup on 9/28/12 11:57am
Msg #436301

"the attorney that prepared the will cannot notarize it"?

I'd never believe a statement like "the attorney that prepared the will cannot notarize it" unless the state that the statement applies to is named, along with a citation to back up the statement. Statements like that are hardly ever true for the whole country.

I don't notarize wills because my understanding is that in Vermont the witnesses have to vouch for the will in court even if it is notarized, so the notarization accomplishes nothing. Of course, I wouldn't say that to someone who asks me to notarize a will, I'd just say see a lawyer.

Reply by janCA on 9/28/12 12:02pm
Msg #436303

Re: "the attorney that prepared the will cannot notarize it"?

We just had our trust done and the attorney notarized our signature on every document that needed notarization. That is a blanket statement. My parents was done many years ago back in Kansas and the attorney also notarized their signatures.

Reply by 1Notary1 on 9/28/12 12:16pm
Msg #436310

Re: "the attorney that prepared the will cannot notarize it"?

That's right, VT, they cannot. Just like us notaries cannot notarize our own signature. The attorney that prepared the will cannot notarize it, not legal or ethical. This is why most attorneys have a secretary or paralegal in their office who's also a notary public.

Reply by janCA on 9/28/12 12:59pm
Msg #436321

1Notary1....

1Notary1, what law are you referring to or is this just your personal opinion? It's a blanket statement. Are you saying in every state of the union it is illegal for an attorney to notarize the signatures on the wills and trusts they have prepared?

Reply by Marian_in_CA on 9/28/12 1:12pm
Msg #436322

Re: "the attorney that prepared the will cannot notarize it"?

That's not entirely true, 1Notary1. In some states it is perfectly acceptable for an attorney to notarize the signatures.

In CA, for instance, we're not allowed to notarize signatures for documents where we would have a direct financial or beneficial interest.... except our law specifically states, "A notary public would not have a direct financial or beneficial interest in a transaction if a notary public is acting in the capacity of an agent, employee, insurer, attorney, escrow holder, or lender for a person having a direct financial or beneficial interest in the transaction."

IN other words, and attorney is perfectly allowed to notarize in some cases...provided they have a Notary commission, of course. It's been my experience that many do not. They see it as a "chore" left to their office staff. There are some, though, that want to be sure there is a clear separation there... so the notarization is done by someone entire out of house. I'm okay with it, because I have a few attorneys who are like that. They don't even want their employees notarizing stuff for their clients in order to avoid any and all appearance of interest.

That doesn't mean it's WRONG if they choose to do it (in California, anyway). They're well within the law to do so. There are just some who choose not to for business reasons. That's good for me, as well as other mobile notaries!

Reply by 1Notary1 on 9/28/12 1:48pm
Msg #436330

Re: "the attorney that prepared the will cannot notarize it"?

Some laws apply across the board. Such as a notary is not being allowed to notarize his/her own signature or any documents/instrument he/she has interest in. No matter what state you're in. Same applies for attorneys. It's across the board. I've been told by several attorneys here in PA, that they cannot notarize a document, such as a will, that they've prepared and received payment for. Might be categorized under "conflict of interest". Also, I was told by attorney who is licensed to practice law in 3 states, that this is true across the board. To me, it makes perfect sense. Feel free to call attorneys in your own state and ask them about it to make sure.

Reply by Marian_in_CA on 9/28/12 6:24pm
Msg #436371

Re: "the attorney that prepared the will cannot notarize it"?

Except that it's NOT true across the board, and I quoted right from our state handbook tell you as such.

It is wise or ethical? I have no idea... but it's not illegal in *MY* state. Which means it may not be illegal in others either.

Reply by JanetK_CA on 9/28/12 3:17pm
Msg #436338

Re: "the attorney that prepared the will cannot notarize it"?

I personally know at least one estate planning attorney (who is also a notary) who routinely notarizes the documents he prepares for his clients. I believe I've run into a few others along the way, as well, although most attorneys I know don't do that. No comment on whether it's wise or recommended, but I don't think it's illegal - at least in my state.

Every state is going to have different regulations on this, so I agree with Jan that some kind of documentation or reference needs to be provided before I'd be willing to accept that as true just because someone anonymously said so on an internet forum. (No offense intended, just being cautious.)

Reply by Linda_H/FL on 9/28/12 3:26pm
Msg #436339

Yes, it varies by state - it is not true across the board n/m

Reply by NVLSlady/VA on 9/28/12 12:01pm
Msg #436302

Re: I don't see the problem

Right - I was thinking some may steer away from the "risky" parts of what we do; but really, it's all subject to some risk. Now, I know Signing Agent insurance has been highly recommended on top of E&O to cover acts specific to signings . . . don't want to express my thoughts on that.
But, are some hesitant to take on wills because of a lack of legal background (most of us aren't paralegals)? I remember studying estate planning: beneficiaries may pose a problem since they can't be witnesses.

Now, IF we actually are reading the Will, maybe that might stop some "dead in their tracks" if Mr. and Ms. Witness are inheritors of the estate . . . the thing is, we DON'T have to read or certify the contents of documents, right?

Reply by Marian_in_CA on 9/28/12 12:05pm
Msg #436304

Re: I don't see the problem

Why don't people just get general business liability policies to cover their line of work rather than all of the various specialized policies? E&O I get, but beyond that, it all seems unnecessary if you get a good business insurance plan.

Reply by reba on 9/28/12 12:05pm
Msg #436305

Re: I don't see the problem

It appears that NY notaries are discouraged from notarizing wills so that their notarization will not be construed as a validation of the will. A notary is only attesting to the signature on the document and not to the content. Maybe it would be helpful (for me) to have the party sign a disclaimer stating such.

Reply by NVLSlady/VA on 9/28/12 12:22pm
Msg #436312

Re: I don't see the problem (disclaimer)

Yes, but that could be seen as the "practice of law."
BTW, a Will IS valid if properly executed (or contested in court); but even so, every state should recognize that Notaries don't "validate" documents - just Signers

Reply by NVLSlady/VA on 9/28/12 12:23pm
Msg #436313

sorry, meant to say (or unless contested in court) n/m

Reply by MikeC/TX on 9/28/12 3:35pm
Msg #436341

Re: I don't see the problem

The problem is that a notary cannot do that in NY. Otherwise, it's not a problem.

Reply by MikeC/TX on 9/28/12 3:33pm
Msg #436340

You cannot notarize a will in NY, nor can you be involved in its execution - that could invalidate the will.

The only thing you can notarize is the Self Proving Affidavit. Assuming the will was drawn up by an attorney, the Affidavit (a separate document) will be available. The witnesses will first witness the execution of the will, and then you take their oaths on the SPA. (it basically just says they witnessed the execution of the will, and is used when the will is probated). If there's no SPA available, there's nothing for you to do.

Reply by Linda_H/FL on 9/28/12 3:50pm
Msg #436344

In FL the SPA is signed by all - the Testator/Testatrix

AND the witnesses - so all signatures are notarized.

Reply by MikeC/TX on 9/28/12 4:13pm
Msg #436346

Re: In FL the SPA is signed by all - the Testator/Testatrix

I've seen it done both ways in NY; I think the testator/testatrix signature on the SPA is optional.

Reply by Roger_OH on 9/28/12 5:38pm
Msg #436358

Not in Ohio, either...

Testator signatures on Last Wills are only witnessed; by two non-related, totally disinterested persons.

The witnesses signatures can be notarized, if requested, but not that of the testator.

I do agree with the concept that if the notary role is to protect the public, then why shouldn't that role extend to Last Wills?

Reply by CJ on 9/28/12 6:26pm
Msg #436373

My 2 cents.

People say to me, "I know! We'll right up a will, and have Carolyn notarize it, and then it will be legal, right?!" They don't understand that a notary doesn't "make it legal". A notary says, "Yes, that really IS their signature".

It does not have to say in the handbook "never notarize a will". Someone else in authority decides what needs notarizing and what does not. That is not the job of the handbook, but the job of attorneys. We know that Deeds of Trust and Grand Deeds ALWAYS need to be notarized, even though it does not say so in not in the handbook. But for some reason, the Note is NEVER notarized.

Since an attoney has to draw up the will, he knows how to get it signed according to the law, and if he needs witness or notaries, he usually makes sure that someone in his office is on hand to do it.

Reply by MistarellaFL on 9/28/12 6:31pm
Msg #436375

Re: My 2 cents.

<<<the Note is NEVER notarized>>>
I'm sure you meant ALMOST NEVER, because I've seen some that the lender has required notarization.