What Is the Way with a Will?
Q: When you make out a will, do you need to have it notarized?
A: Glad you asked. Your question is on the tips of the minds of a great number of people. To be valid, a will must be legally executed. This is not as bloody as it sounds. It means only that you must sign your will in front of witnesses. These witnesses must not only sign the will in your presence, but also in the presence of all the other witnesses. Nearly every state requires two witnesses to a will--with the exception of Vermont, which requires three.
Today, most states allow people to make their wills self-proving--that is, they can be admitted in probate court without the hassle of herding up witnesses to appear in court or sign affidavits verifying that a person making a will seemed of sound mind and all when the document was signed. This is accomplished when the person making the will and the witnesses all appear before a notary public and sign an affidavit under oath, verifying that all necessary formalities for execution have been satisfied. Perhaps this is where all the confusion about notaries and wills comes in--although it is more likely that folks just assume that a document as powerful as a will should be notarized to somehow give it a more legalesque aura.
In California where you live, along with Michigan and Wisconsin, the self-proving feature does not require a separate affidavit. Instead, the fact that the witnesses sign the will under the oath printed above their signatures is sufficient to have the will admitted into probate, unless a challenge is mounted. There is no need to take further steps to make a California, Michigan or Wisconsin will self-proving. And notaries in these states who are presented with wills have been known to become confused, surly--and sometimes both. There's no need to involve them in your willmaking process.
Copyright 1999 Nolo.com Inc.
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