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.