Do Wills Have to Be Notarized?

By Teo Spengler

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.

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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.

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Rules for Witnessing a Will
 

References

Related articles

How to Prove a Will Is Genuine

A last will and testament is the final word of a deceased individual in which he directs the disposition of his assets. The will may be old and crumpled and found inside a drawer somewhere or in pristine condition in a safe-deposit box. Provided a will meets statutory requirements, it is assumed genuine until and unless challenged before a court. The probate court has jurisdiction to accept or deny a will presented for probate.

California Law on Wills

By establishing a will, you can avoid administration of your estate under California intestate succession laws. However, merely writing a will is not sufficient for the state to recognize your wishes -- your will must comply with the guidelines defined by the California Probate Code for the state to acknowledge its validity. While a will that overlooks only one requirement may still uphold in court, you risk the court putting aside your entire will if you fail to comply with these guidelines.

How to Execute Wills

States impose few restrictions on who can make a will -- any adult who is of age and able to reason qualifies. Testators in some states can disinherit spouse and children, as long as they use clear language, however many community property states require that a spouse get a share of the property. States are picky about executing wills, and the term "execution of a will" actually describes how a will must be signed. Consulting with an attorney can ensure that the process is handled correctly, and in accordance with state laws.

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