© 2013 Kim Giancaterino. All Rights Reserved.
Notarizing Wills in California
Every so often I’ll get a call from a prospective client who wants to have their last will and testament notarized. In every instance I mention that a will prepared in California doesn’t require notarization to be legal. I always suggest they consult with an attorney or a respected legal website like Nolo.com for additional information. Not once has someone called back to insist I notarize their will.
It’s pretty safe to assume that someone consulting with a notary about their will has not already spoken to a lawyer or done a bit of research online. The fact is, notaries who aren’t also attorneys are prohibited from offering legal advice to signers (a testator, in the case of a will).
An Estate Plan Begins with a Will or Living Trust
I routinely encounter wills when hired to do attorney-prepared estate plans, which always involve several notarized signatures. None of the attorneys I work with on a regular basis have asked me to notarize a will, though I’m often called upon to witness them.
The bottom line is I’ve never notarized a will. I don’t want anyone to feel I’ve collected fees under false pretenses. More importantly, a notarial certificate alone doesn’t meet the requirements of California probate law. Without the required two witnesses, it’s money down the drain. Sadly, a few notaries out there will be happy to charge for notarizing wills without mentioning this fact.
California Probate Code
… the will shall be witnessed by being signed, during the testator’s lifetime, by at least two persons each of whom (A) being present at the same time, witnessed either the signing of the will or the testator’s acknowledgment of the signature or of the will and (B) understand that the instrument they sign is the testator’s will.
California Will Requirements
The state of California requires that a will must be signed by the testator in front of two witnesses, and that those witnesses also sign the will.
What should you do if someone insists on a notary certificate for their properly signed will? There’s no rule against notarizing wills in California. At one time The State Bar of California advised notaries to decline requests to notarize wills unless a member of the Bar prescribed that course of action. However, it was merely a recommendation.
Notaries are commissioned by the Secretary of State and follow guidelines set forth in the most current Notary Public Handbook.
Shop for Legal Forms and More
General Affidavit, Power of Attorney, Last Will and Testament, Living Will, Real Estate Deed, Promissory Note, Premarital Agreement, Residential Rental Agreement, and more. California state laws prohibit notaries from choosing or completing legal documents for their clients.
2018 Notary Public Handbook (Secretary of State)
California Probate Code Section 6110 (California Legislative Information)
Do I Need a Will? (The State Bar of California)
My Last Will fancy pen photograph by geralt
Writing notes on pen and paper photograph by tookapic