Do wills need to be notarized? Since notaries are often useful in giving legal effect to other official documents, people often assume the same is true with wills.
The truth, however, may be surprising: Although state laws on wills differ, you do not need to notarize a will for it to be valid.
So where does a notary fit in to making a will?
Making a Valid Will: The Basics
The basic foundation for enforceable wills in most states requires:
- A typed or handwritten will,
- The signature of the will writer (called the testator) along with the date when the will was signed, and
- The signatures of at least two witnesses (also dated).
In most cases, a will that contains these basic elements will be enforced as valid. Note that there is no requirement that a will be notarized. (This is different from state laws that require a notary public to attest to the authenticity of other types of documents, such as living trusts.)
Wills do need to be validly witnessed, however Those witnesses generally need to:
- Receive no benefit from the will (i.e., be "uninterested" parties);
- Sign in the "presence" of the testator;
- Attest that the will was freely and voluntarily signed by a testator of sound mind; and
- Be at least 18 years old.
A notary is not be needed to make your will legal. But in some states, an optional notarized affidavit attached to your will may save time in the probate process.
Notaries and Self-Proving Affidavits
If you want your will witnesses to sign an optional "self-proving affidavit," then that will require a notary.
A self-proving affidavit is a sworn statement by you and your witnesses that the will you all signed is valid. It may come in handy during the probate process: If a witness can't be located to testify about the validity of your will, then the notarized affidavit can suffice.
For an example of what must be included in a self-proving affidavit, take a look at Delaware's (or your own state's) code provision. But keep in mind that not all states allow for notarized self-proving affidavits.
So while a notary is not required to make your will legal, in many states, a notarized self-proving affidavit attached to your will can potentially help it move more quickly through probate. Contact an experienced estate planning attorney near you to learn more.
- Notary Public Frequently Asked Questions (Commonwealth of Massachusetts)
- 5 Questions to Ask Your Estate Planning Lawyer (FindLaw's Law and Daily Life)
- 5 Things You Shouldn't Include in Your Will (FindLaw's Law and Daily Life)
- Create a simple, personalized will in minutes at LegalStreet (LegalStreet.com)
(Disclosure: LegalStreet and FindLaw.com are owned by the same company.)