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Notarizing Last Wills and Testaments


Wills are highly sensitive probate documents that determine how a person's assets will be distributed after his or her death. The person making the will is called a "testator" if male and a "testatrix" if female.


Some states advise novice notaries against notarizing wills unless those notaries are knowledgeable about the practice. Many notaries who encounter wills do so within the capacity of their occupation, for instance as a legal assistant or an employee of a law firm that handles wills and other estate-planning documents. Such wills are drafted by attorneys with specific instructions and pre-printed notarial certificates for the notary to complete.

Problems can arise when a client presents a notary with a self-prepared will and the client depends on the notary to determine the appropriate notarial certificate. In such cases, a savvy notary should decline to perform the notarial act and advise the person to contact an attorney for advice. You might also suggest that investing in a good attorney will prevent problems down the road with contested wills or wills thrown out in probate court due to sloppy execution procedures.

Laws regarding the proper execution of wills vary greatly from state to state. In states such as New York and North Carolina, a will does not have to be notarized to be accepted for probate in the courts. However, attorneys in those states recommend drafting "self-proving wills" to speed up the probate. A "self-proving will" is one in which the testator and the disinterested witnesses swear, in an affidavit in front of a notary, that the testator is fully aware of what is being signed and that the disinterested witnesses witnessed the testator sign the will. In these states, the court will accept "self-proving wills" without contacting the witnesses who witnessed the testator sign the will. In the absence of a self-proving will, it will be necessary to track down the original witnesses to "prove" he or she witnessed the signing of the will, which can be difficult and time consuming for the heirs.

In California, a will only needs the signatures of two disinterested witnesses who witness the testator sign the will and does not need to be notarized in order to be valid. In some states, such as Texas, a holographic will (written entirely in the testator's own handwriting) is considered valid. It would be prudent, therefore, for the notary in those states to make it a practice to refuse to notarize hand-written wills and to refer clients with those requests to an attorney.

In conclusion, notaries should exercise caution when notarizing wills. Because of a lack of understanding and diligence, an improperly drafted will that is notarized can be declared null. If you are not comfortable with notarizing a will, you should not proceed. If you have questions, politely ask the client for the name, address, and phone number of the lawyer who drafted the will.

One last note: always follow the steps for proper notarization when performing notarial acts by requesting the physical presence of the signer, properly identifying the signer, and ensuring that the signer is competent and fully understands what is being signed.

Legal disclaimer: The American Association of Notaries seeks to provide timely articles for notaries to assist them with information for managing their notary businesses, enhancing their notary education, and securing their notary stamp and notary supplies. Every effort is made to provide accurate and complete information in the American Association of Notaries newsletters. However, we make no warrant, expressed or implied, and we do not represent, undertake, or guarantee that the information in the newsletter is correct, accurate, complete, or non-misleading. Information in this article is not intended as legal advice. We are not attorneys. We do not pretend to be attorneys. Though we will sometimes provide information regarding notaries' best practices, federal laws and statutes, and the laws and statutes of each state, we have gathered this information from a variety of sources and do not warrant its accuracy. In no event shall the American Association of Notaries, its employees, or contractors be liable to you for any claims, penalties, loss, damage, or expenses, howsoever arising, including, and without limitation, direct or indirect loss or consequential loss out of or in connection with the use of the information contained in the American Association of Notaries newsletters. It is your responsibility to know the appropriate notary laws governing your state. Notaries are advised to seek the advice of their states' notary authorities or attorneys in their state if they have legal questions. If a section of this disclaimer is determined by any court or other competent authority to be unlawful and/or unenforceable, the other sections of this disclaimer continue in effect.

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