Part 2 – Notarizing WillsBrenda Stone
Welcome to the second installment of Wills and Estate Documents for Notaries series! If you missed Part 1, you’ll find it here.
Since the arrival of free and cheap online do-it-yourself (DIY) legal forms, notaries are called more frequently than ever to notarize wills. Today’s article is about handling about wills from a notary signing agent’s view. A notary’s focus in this type of work is: to identify the signer of the will, ensure the will appears to be complete with no glaring blanks or spaces waiting to be filled in with missing vital information, witness the signatures placed on the will, and to perform the verbal ceremony that goes along with the will’s execution.
Legal Jargon Not Used – I have chosen not to use these legal terms in this article and to keep things as simple as possible. I used the terms “signer” and “will maker” rather than testator and testatrix. This article is long enough without complicating it! Nonetheless, I wanted to share these terms with you. You will hear them again.
- Testator – Male signer / maker of a will
- Testatrix – Female signer / maker of a will
Steps for Conducting a Will Signing
As we go forward, please recognize that these steps and additional remarks are from my own experiences. This is not legal advice. You must follow the laws in your state and refer to your commissioning authority or the attorney of your choice for legal guidance.
When the call comes in for a request to conduct a will signing appointment, I ask:
“Did a lawyer prepare the will?” If yes, I go forward. (If a lawyer was not involved, I will be cautious about accepting the assignment. This is a decision that we all have to make personally.)
During the call, I do these things.
- Describe the type of identification I can accept.
- Mention that the witnesses should provide ID. Also, that the witnesses should arrive promptly so as not to delay “my next appointment.” (Otherwise, the appointment may not get started on time.)
- List the payment types that I accept.
- Determine a time, place, quote a fee and ask for an email address or phone number where I can email or text the quote. I ask them to reply with “Agreed.”
Finally, I print out two copies of the itemized invoice and put them in my journal so I can hand over my invoice at the beginning of the appointment. That way, the signer will have another chance to see the fee before we go to the next step.
Start a Journal Entry
Once the witnesses, signers, and I are all in the room together, I list the signers and witnesses in my journal. Also, I make a note of any other parties present. Naturally, you will do whatever your state’s laws about this requires you to do.
Identify the Signer and Witnesses
I identify the signer first, then the witnesses. Your state’s laws should reference whether witnesses must be identified by the use of identification documents. If no requirement is made, do what you feel is appropriate. I ask witnesses for ID and to sign my journal.
Review the document.
If I am asked to notarize a husband’s and wife’s will at the same appointment, I do one at a time beginning at this point. I ask to look over the document, not to read it, but to make sure there are no blanks. If there are blanks, I ask the signer to complete them.
Verbal Ceremony – Execution Ceremony
Now it is time to sign.
Here are instructions from my own lawyer that he sent with my will. Do not assume that these work for you, but it gives you a look at the basic steps. These are not included as a pattern for you to follow, but so that you see there is more to handling a will signing over and above “Sign, sign, sign, sign, stamp, good-bye!”
My lawyer’s instructions (paraphrased) went like this.
The signer and witnesses should execute the will in the presence of the notary.
1 – The signer should declare “This is my will and I want these witnesses to sign it and to see me sign it.”
2 – The signer should initial each page where indicated and sign on the proper lines.
3 – The witnesses should sign, print their names, and add their addresses under their signatures.
4 – The notary completes the execution of the will by reading aloud in the presence of the signer and witnesses the attestation, which is also known as a self-proving affidavit.
5 – The notary asks the witnesses and the signer to swear or affirm their parts of the statement.
6 – The notary completes the certificate by filling in the name of the signer and witnesses. The notary signs the certificate and applies her official seal.
At the end of the appointment, be sure to collect your fee.
About Signers of Advanced Years
When working with a person of advanced years, try to determine their ability to understand the purpose of the document they are signing by making conversation with them.
Conversation will usually bring out whether they have the ability to make the decision to sign the document. Tell them you are a notary and ask if he or she was aware you were coming. Ask if they were planning to sign documents and what the documents are about.
Speak loud enough to be heard. If that doesn’t work, try writing a note and asking if they can hear you okay. Having diminished hearing can make anyone seemed confused.
If you need to, speak privately with the signer. Ask others to leave the room.
If you don’t believe that the person is able to make an informed decision to sign the will, don’t go forward. Decline to notarize the document.
So…should you notarize wills?
This is a question you will need to decide for yourself.
If you want to be better prepared for handling will notarizations, get a bit of experience, and sharpen your skills.
You’ll be better off if you have
-performed at least 50 notarial acts.
-taken a solid training course on performing notarial acts.
-purchased errors and omissions insurance. (I personally have a policy in the amount of $100,000. I believe strongly in having E&O insurance.)
-observed the signing of at least one will.
A last will and testament is one of the most important documents that a person will ever sign. They are used to ensure that the signers’ minor children are provided for. Wills distribute property to people that the will makers want to inherit property. Legacies are established by wills.
Like any notary work, there are risks involved, but it seems like the risk is higher for wills.
- Wills can be contested. That means a party who doesn’t like what is in the will can claim the will is invalid. The presiding notary may be subpoenaed.
- If the notary makes an error, the notary’s error will be noticed and may even invalidate the will.
I am comfortable with notarizing wills as long as a lawyer is involved. After many years, I have decided that it is prudent for me to go this route. I will explain more in the next section about why I have made that decision.
About DIY Wills
To my knowledge, there is no law in any state that says a person cannot create their own will.
My stance on avoiding DIY wills isn’t popular among my notary friends, but hear me out. I am not against DIY wills! But, I am 100% FOR notaries and giving you insight into the pitfalls of your work.
Too often, wills drafted by do-it-yourself folks have language within them that is above their own understanding. They look to the notary to tell them if anything is wrong or to help them understand what something means. (Keep in mind that notaries can’t interpret legal documents.)
When stumped about how to complete the DIY will forms, many times, a signer pressures a notary to help. The notary believes she is going to an appointment to complete a notarial act. Upon arrival, the notary may find a half-completed form and an opportunity to play lawyer (illegally, I might add). In turn, many new notaries reach out to me asking questions about DIY wills. I have looked at these documents and could not figure out what was expected to go on the line or in the blank. At that point, neither I nor any notary can do much to help without getting into trouble ourselves.
To try to “fix” some of the things I have seen are definitely not within a notary’s authority.
I have fallen back on the rule that when a notary doesn’t understand how to perform an act in my state, the notary may decline to notarize the document. That is the safest route when you aren’t clear on exactly what you need to do (if your laws allow you to do so).
Soliciting attorneys for mobile notary work related to wills and estate documents may be profitable for you.
Attorneys have notaries in their offices. They won’t need you to perform notary services in their offices. However, a monthly postcard to local probate and estate attorneys offering your services as a mobile notary to conduct will signings could bring results. Try offering to go to their housebound clients to oversee the signing of wills and other types of estate documents.
To give you a few ideas on possible scenarios, I have been requested by attorneys to go to the bedside of hospice patients to conduct a will signing. I met one attorney at a nursing home to oversee the execution of a will. Others have sent me there to meet with their client alone. I have been directed to go to the campus offices of professors with busy schedules, real estate offices to sign with real estate agents, and I have met a man in the local airport.
Additional sources to solicit for referrals to handle will signing appointments:
- Hospice providers
- Nursing homes
- Assisted living centers
- Hospital volunteers and others (article)
Try some of the fall marketing tips from last week to reel in this type of work.
Next week: Part 3 – Notarizing Powers of Attorney.