Do Wills Have to Be Notarized?

by Teo Spengler Google

    The signature of the testator, or will maker, need not be notarized, nor can a notarized signature replace the legal requirement of two subscribing witnesses to the will. A notary's function is to assure that the person signing a document is the person claiming to sign a document -- a function performed by comparing identification and sometimes fingerprints -- while witnesses to a will must also affirm testamentary capacity and intent.

    Witnesses

    Most states require that two witnesses subscribe to the execution of a prepared will. Since the testator is deceased, he cannot verify his signature nor testify as to his intent, so the witnesses testify in his place. Generally, witnesses must swear to the testator's identity -- that the person who signed the will was who he claimed to be -- that he was of legal age, possessed the required testamentary capacity, executed the will of his own free will and had full knowledge of the contents of the will. As of November 2010, no state requires that the testator's signature be notarized.

    Witness Qualifications

    Witnesses must be 18 years or older and of sound mind. The law prefers disinterested witnesses -- witnesses who are not also heirs under the will -- and the majority of states specifically require them. In those states, a witness who also stands to inherit under the will may lose the inheritance. While a notary can serve as a witness to a will, she will sign as a disinterested witness, not as a notary.

    Self-proving Will

    Once a will is admitted into probate, the signature must be proved to be that of the deceased. The subscribing witnesses generally must testify in probate court. The parties can avoid this inconvenience if a notary is present at the time the will is executed. The testator and witnesses sign the will and acknowledge their signatures in the presence of a notary public who affirms their signatures. If this procedure is followed, the will is termed "self-proving" and no other testimony is required to prove the will.

    Holographic Wills

    Holographic wills, or handwritten wills, are valid in many states, including California. Holographic wills by definition cannot be preprinted, nor should printed materials be incorporated into them. These wills do not require affirming witnesses or need the testator's signature be notarized. According to the National Notary Association, some holographic wills are invalidated by notarization.

    About the Author

    Living in France and northern California, Teo Spengler left the active practice of law for full-time writing in 2000. Her journalism appears in newspapers from Alaska to the Basque Country. Spengler earned a master's degree in creative writing from San Francisco State University and a Juris Doctor from UC Berkeley.

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