Guide to Notarizing Last Wills and Testaments

A last will and testament is a highly sensitive probate document that determines how a person's assets will be distributed after his or her death. The laws regarding the proper execution of wills vary from state to state. Typically, however, a properly drafted will requires the acknowledgment of the person making the will (called a "testator" if male or "testatrix" if female) and the oaths of two witnesses unrelated to the principal signer, all before a notary public.

Some states advise notaries against notarizing signatures on wills unless they are trained in their execution. Most notaries who encounter wills do so in their capacity as a legal assistant or employees of a law firm that handles wills and other estate-planning documents. Such wills are drafted by attorneys and come with specific instructions and pre-printed notarial certificates to be completed by the notary. Complications arise when a party drafts his or her own will, without the assistance of legal counsel, and comes to a notary for assistance.

Dealing with handwritten wills

First, there is the problem of handwritten wills. In general, there is nothing prohibiting a notary from notarizing a handwritten document, as long as it contains the appropriate jurat or certificate of acknowledgment. However, in many states, a will written entirely in the testator's own handwriting is considered a valid, holographic will. When a holographic will is witnessed or notarized, the will is invalidated because it no longer contains only the testator's handwriting. Therefore, you should make it a practice to refuse to notarize signatures on handwritten wills, unless the testator or testatrix has provided an appropriate notarial certificate.

Reviewing the notarial certificates

If you decide to notarize a last will and testament, you should carefully review the notarial certificate. Because two impartial witnesses are usually required - both of whom must have their signatures notarized - the notary would not be able to sign as both a notary public and as a witness to the signing of the will. This is a departure from real estate documents, where notaries commonly sign in both capacities. As always, notaries can generally sign as a witness and as a notary, provided that the pre-printed notarial certificate does not require the notarization of the witnesses' signatures.

Ensuring the signer’s competency and willingness to sign

As with any transaction involving elderly and other vulnerable signers, a notary should make sure that the signer understands the nature and effect of the will before proceeding with the notarization.

Refusing to notarize

In general, notaries should only proceed to notarize a will if the document contains instructions for the notary or a pre-printed certificate for the notary. If a person presents you with a will that does not contain such information, you should 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.

Notaries who come in contact with wills should also be familiar with other types of estate planning documents. A codicil is a separate document, typically executed with the same formalities as a will, which amends a previously executed will. A living will is actually not a will at all; rather, it is generally a health care directive that takes effect if the principal signer becomes medically incapacitated. Living wills, however, usually only require the acknowledgment of the principal.

At the end of the day, however, notaries who are uncomfortable notarizing wills not prepared by an attorney should politely decline. As always, laws regarding notarization vary greatly from state to state - so consult your state laws or commissioning authority for more information.