Does a will need to be notarized?

Do you need to notarize your Will?

Writing a will on your own and getting it notarized is only half the battle. Your Will can still be considered a legally binding document if it hasn’t been notarized, so long as it’s made according to all the will requirements outlined in California State law. Accordingly, the testator must sign the Will, and two other people who don’t stand to benefit are called disinterested witnesses. (Handwritten and oral will have different requirements.) Once you pass away, the Will needs to be verified or proven. The witnesses must appear in probate court to verify their signatures and the testator’s signature, which might be difficult if the witnesses have moved away or died. This ultimately delays the time it takes for any beneficiaries to receive assets in the Will. To alleviate this burden, you can add a self-proving affidavit to your Will, in which case your Will must be notarized.

“Under California law, there is no requirement that a will be notarized to be valid. While many wills may be notarized, the lack of notarization will not provide grounds for a will contest. In some cases, however, a will may have been notarized under the mistaken belief that doing so overcomes the need for two disinterested witnesses to view the signing of the Will.”

If this is the case, the Will could be subject to attack. Here is why:

First of all, unless it is a holographic will, it must be witnessed by two adults. These witnesses must be competent and ideally disinterested to be valid.

Furthermore, the signature of a notary public on a will does not take the place of a witness.

Lastly, a valid witnessed will should contain an attestation clause lacking the notary block.

Even in cases where there are two witnesses to a will, it does not mean that it cannot be challenged. An experienced attorney can assess the unique facts and circumstances surrounding the signing of the particular Will in question to determine whether you may have grounds for a will contest.

Requirements Dependent on How the Will Is Created

Whether handwritten, typewritten, prepared by someone else, or created online, a will drafted in California does not require notarization. However, the probate laws do have various requirements depending on how it is made.

While the requirements differ, remember that preparing multiple might cause issues when determining which one is the most recent and valid for execution. That is why it is essential to destroy your first version if you intend on drafting a new one. Below are some additional requirements to adhere to when drafting a will.

Handwritten Wills

In California, a handwritten will, also known as a holographic will, is valid according to California Probate Code section 6111. This statute requires that the material provisions of the testament and the signature be in the testator’s handwriting. They don’t need to be witnessed because the testator’s signature is sufficient.

While not required, the document must be dated. According to Section 6111, if it isn’t dated and its provisions conflict with the ones outlined in another version, or it is established that the testator lacked capacity while drafting it, it might be invalid. Further, the statute states that testamentary intent may be shown either in the handwriting of the testator or “as part of a commercially printed form will.” For these reasons, the testator should date a handwritten will to avoid potential problems with its validity.

Even a late discovered holographic will is valid in California when it meets the legal requirements.

Typewritten or Prepared Wills

A will prepared by an attorney or typewritten by the testator is valid. However, California Probate Code section 6110 does require that this type is signed. While the testator typically signs the document, Section 6110 allows it to be signed by someone else in the presence of and at the testator’s direction or by a conservator appointed according to a valid court order. Review any court orders issued previously when reviewing a typewritten or prepared will.

For typewritten or prepared documents, at least two witnesses must sign indicating that they witnessed the signature and are aware that the document being signed is the testator’s Will.

Online Wills

Several different online forms and programs can be used to draft a will. In California, a testator can draft one online, with or without the assistance of another party. After that, the testator must print and sign the document in front of two people, who must also sign the document attesting to the testator’s signature.

Before creating a will, the testator should first determine which type is the most appropriate and then ensure that the probate laws and other requirements are followed to prevent issues with its validity. It’s also important to note that the witnesses signing the Will must know precisely what they are signing, as they may be brought to testify during probate if it’s ever challenged.