California

By David S. Thun

dthun@nationalnotary.org January 1, 2001 What do these statements have in common? They are all wrong. For Notaries, requests to notarize a will are tricky business. A last will and testament is an extremely complex document. Without instructions from an attorney, it is easy to make an accidental error that may invalidate the document or leave the Notary liable for lost assets. To complicate matters further, many people believe that any last will and testament they prepare and have notarized is binding in a court of law. The laws governing preparation of a last will and testament are detailed and strict. Many people assume that writing a simple list of assets and designating recipients for them will suffice. In some cases, this works. All too often, it does not. Such ill-prepared documents may result in lost assets, tax problems, long hours in probate court, and bad feeling among bereaved friends and loved ones. While nonattorney Notaries should never give legal advice or help prepare a will, a keen understanding of the intricacies behind such documents is the best defense against later problems. The following is a discussion of last wills and testaments and what Notaries should do when handling them and other papers related to the disposition of an estate immediately before or after a person dies. Witnessing versus Notarization

Typically, wills and testaments are authenticated through the signatures of two or more witnesses. These witnesses must be present when the person creating the will (referred to as the testator or testatrix) signs the document, and the witnesses also must sign. The requirements to serve as a witness to a will vary. "In some states, a witness must be an adult. In others, courts have held a child may be a witness if considered credible in the eyes of a judge," says Jon Gallo, head of estate planning for the law firm of Greenberg Glusker Fields Claman & Machtinger in Los Angeles. "The general rule of thumb is that a witness must be an adult who is not a beneficiary of the will. In many states, being both a witness and a beneficiary is incompatible, and the entire will might be invalidated." Some individuals assume that having a signature on a will acknowledged before a Notary Public will have the same legal effect as having two witnesses present. This is not the case. Notarization does not replace a state's requirement for witnesses to the signing of a will. Witnessing the signing of a will and testament is not a notarial act. "A Notary can be a witness, but in that case is serving only as a disinterested witness, not as a Notary," Gallo says. "Please don't put your Notary stamp on a will [if you serve as a witness]. It will raise questions as to whether you signed the will as a witness or as a Notary." Self-Proving Wills

While notarization cannot replace the requirement for witnesses, in some cases a testator and witnesses may wish to prepare a self-proving will. This will is intended to eliminate the need for witnesses to appear in probate court to testify to the authenticity of the will. To make a will self-proving, the testator and witnesses typically affix and acknowledge their signatures in the presence of a Notary Public. Alternatively, the testator and witnesses sign the will and then create an affidavit that the will was executed properly. That affidavit is then signed and sworn to by the testator and witnesses in the presence of a Notary. However, because of the strict requirements and complexity involved, a Notary should never agree to notarize any type of last will and testament, including a self-proving will or an affidavit to make a will self-proving, without first receiving clear instructions, ideally from an attorney. The notarial forms to be completed must be provided by the testator or testatrix. Internet Wills

Notaries must be especially careful when presented with a will that has been downloaded from the Internet. These wills are often advertised as cheaper, faster alternatives to having a lawyer prepare a will. But Internet wills may not be sufficient for disposition of certain types of assets, or may provide the testator with inaccurate instructions. "There are some good wills online, but there also are a lot of bad ones, where the execution requirements are not made clear," says Pasadena, California, attorney Christopher Johnson. He cautioned that if a signer or Notary follows incorrect instructions for an Internet will, the will may be rejected. Holographic Wills

Another type of will that is commonly misunderstood is the holographic or handwritten will. Holographic wills are not accepted in every state. Also, because it is necessary to prove conclusively that the handwriting appearing on the will is that of the testator, courts tend to be strict about the format of a holographic will. If any other writing appears on it, the document runs a high risk of being rejected. As a result, holographic wills are not normally witnessed, and Notaries should avoid affixing a seal or signature to such documents. "It used to be if you wrote your will on a piece of hotel stationery, the hotel logo at the top would invalidate it," Gallo says. "A lot of states have gotten away from such strict interpretations, but as a general rule, if it's handwritten, stay away from it, even as a witness. One person's witnessing or notarizing a holographic will could invalidate it." Codicils: Amendments to Wills

A codicil is used to update part of an existing will. Like a will, a codicil can be invalidated if it is not witnessed properly according to state law. "A codicil is an amendment to a will, and would be treated exactly like a will," says Rodney C. Koenig, a Houston Notary and attorney specializing in estate planning and probate. Following the same guidelines as for last wills and testaments, Notaries should not notarize a codicil without clear instructions, ideally from a lawyer. "Codicils can be dangerous, particularly because people not being advised by an attorney can very easily become mixed up about them," Koenig cautions. Misunderstood Documents

Powers of attorney, living wills, and trusts are often prepared, executed, and notarized at the same time as a last will and testament for individuals in failing health. The purpose of these documents is often misunderstood. A living will is a document that provides written instructions for medical care if the signer becomes incapacitated and cannot communicate his or her wishes. Such instructions may include an order to not continue life support in the event of a terminal illness. These documents can be notarized without requiring special directions. Powers of attorney are sometimes executed at the same time as wills. A power of attorney gives a person the right to sign documents or make certain legal decisions on behalf of another. "A power of attorney being notarized should stand alone as a separate document," Johnson says. A trust is an agreement designed to hold assets that can be used or transferred under certain conditions for the benefit of designated individuals. While these assets usually can be accessed only under circumstances set by the trust, unlike a last will and testament, assets in a trust are not necessarily bestowed on a beneficiary when the creator of the trust dies. For example, parents can place funds in trusts that are to be used only to pay for a child's college education. "Trusts involving real estate or title may not allow a transfer of that title without recording the documents, which would require notarization," Koenig says. "I think it's a common practice among attorneys to have trusts notarized, although they are not always recorded." As long as the trust is a separate document from a last will and testament, there is usually no problem in notarizing the trust, Gallo says. Similarly, an amendment to a trust could be notarized in the same fashion as the original document, without special restrictions, he adds. However, if the trust is a testamentary trust-created by and part of a last will and testament-it should not be notarized. "Under the law of most states, the court issues an order that recites the terms of the will, creating the testamentary trust," Gallo says. "It is certified by the court clerk after the person passes away." When the Notary Must Say No

It is important to keep in mind that when a Notary provides advice on preparing or signing a will, he or she may be engaging in the unauthorized practice of law, which is illegal. If a will is rejected because of a Notary's improper actions, the Notary not only may place his or her commission in jeopardy but also can be liable for any assets lost through invalidation of the will. A signer may insist on having a last will and testament notarized without the instructions of an attorney. This should always be a warning sign to the Notary to be wary of the document. As both a Notary and attorney, Koenig offers a sound perspective on the issue: "Most of us wouldn't dream of buying a house and writing our own deed. But many people think they can write their own will, which controls not only their house but their car and other assets. You might create problems for yourself-that's why it's good to get advice." A Notary should always urge a would-be testator to seek the counsel of an attorney, especially if the person is asking the Notary questions about how to proceed. To improvise the creation of a last will and testament is inviting trouble. Because wills are often not examined until after the testator's death, by the time an error is discovered, it may be impossible to correct the document. Although it may require additional time and expense on the signer's part, a lawyer's advice may save a great deal of grief in the future. A Notary, Being of Sound Practices and Procedures . . .

Myriad legal papers are associated with the creation of last wills and testaments, and a prudent Notary ought to be familiar with how to handle them. Here, then, are guidelines on which documents may be notarized and which ones may not: Documents that may sometimes be notarized, depending upon state law or the instructions of an attorney: *

* Last will and testament

* Self-proving will (a will in which the signatures of the witness and testator are notarized to eliminate the need for appearances in probate court)

* Codicil (an amendment to a last will and testament) Documents that may often be notarized, depending upon state law or the instructions of an attorney:

* Living will (medical instructions for when a signer becomes incapacitated)

* Power of attorney (a document giving one person the right to sign documents or make legal decisions on behalf of another)

* Trust (a document allowing assets to be transferred to designated beneficiaries under certain conditions)

Documents that should not be notarized: *

* Holographic will (a handwritten last will and testament

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