A last will and testament is a legal document outlining how a person’s assets should be distributed after death.
The laws surrounding the creation of a will vary by state. Still, generally, a will must be signed by the person making the will (referred to as a “testator” if male or “testatrix” if female) and witnessed by two unrelated individuals, all in the presence of a notary public.
Some states recommend that notaries only notarize wills if they have been trained in their proper execution. Most notaries who encounter this will do so while working as legal assistants or employees at law firms that handle estate-planning documents.
These wills are usually created by attorneys and include specific instructions and pre-printed notarial certificates for the notary to complete. Issues can arise when a person tries to create their own will without legal guidance and seeks assistance from a notary.
How To Deal with Handwritten Wills?
Handwritten wills can present a problem when it comes to notarization. While online notary services can typically notarize a handwritten document as long as it includes the necessary jurat or certificate of acknowledgment, some states consider a will written entirely in the testator’s handwriting to be a valid, holographic will.
If a holographic will is witnessed or notarized, it is no longer considered valid because it includes handwriting other than the testators. To avoid this issue, notaries should only notarize signatures on handwritten wills if the testator has provided an appropriate notarial certificate.
Reviewing the Certificates
When notarizing a last will and testament, it is essential to review the notarial certificate. Two impartial witnesses are typically needed, and both signatures must be notarized.
The notary cannot sign both as a notary public and a witness to the signing of the will, which is different from real estate documents, where notaries often sign in both capacities. However, in general, notaries can sign as both a witness and notary as long as the pre-printed notarial certificate does not require notarization of the witnesses’ signatures.
When Not to Notarize?
It is generally recommended that online notary services only proceed with notarizing a will if the document includes instructions or a pre-printed certificate for the notary. If a person presents a will without this information, the notary should suggest that they seek legal advice from an attorney. It is important to note that investing in a reputable attorney can help prevent issues with contested wills or wills that are rejected in probate court due to improper execution procedures.
In addition to wills, it is helpful for notaries to be familiar with other types of estate planning documents, such as codicils and living wills. A codicil is a separate document that amends a previously executed will and is typically executed with the same formalities. A living will is a health care directive that takes effect if the principal signer becomes medically incapacitated but typically only requires the principal’s acknowledgment.
If a notary feels uncomfortable notarizing a will that an attorney still needs to prepare, they should politely decline the request. It is essential to be aware that notarization laws vary by state, so it is always a good idea to consult your state’s laws or commissioning authority for more information.