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January 6, 2014

Can a Notary notarize a Will or Living Will?

To make it quick and simple — Yes, a Notary can notarize signatures on a Will, although it is generally discouraged unless given written instructions by an Attorney. Wills are normally witnessed, but not notarized. But then, why be normal?

Can a notary witness a Will?
YES, a Notary can witness the signing of any document. However, it is discouraged for a notary to be involved in any transaction as a witness or Notary where they might have beneficial interest or financial interest! If the notary benefits in any way from a Will being signed or is closely related to a beneficiary, they could be said to have beneficial interest. Anybody eighteen years of age or older who can sign their own name and watch someone else sign can be a witness to a will. It is that simple!

Can a notary draft a Will?
Document drafting might be considered part of the practice of law in your state. You can ask your state bar association if a Notary can draft a document, or if a notary can draft a legal document. The answer is most likely no. Unless you are trained and authorized, I would stay away from document drafting of legal documents since it is so sensitive!

Then who can draft a Will?
Ask an Attorney to help you draft a Will. Ask the Attorney if the Will should be notarized or only witnessed. The witnesses of the Will can also be notarized by the way!

What about a Living Will?
Living Wills are typically very long documents drafted by Attorneys who specialize in Health Care legal documents. Health Care Power Of Attorney documents are close relatives of Living Wills. Living Wills are typically notarized and often need a notarization in the middle of the document as well as at the end of the potentially dozens of pages.

Can a notary notarize a Living Will?

How about a Dying Will or a Won’t? Or a Living Will that doesn’t have a pulse! I know a Notary who is dying to notarize a Won’t with or without instructions from an Attorney!

(1) Yes, Notary can notarize signatures on a Will, although it is generally discouraged w/o written instructions from an Attorney.
(2) Document drafting may or may not be considered practicing law in your state. Ask the Bar Association.
(3) The difference between a regular Will and a Living Will is that the latter has a pulse.

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Can a notary sign on a different day?

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  1. It is illegal in NY State to notarize the signature of the person who the will is for. Some wills specifically designed to circumvent this restriction have a NY State Attestation Section. In that section the notary will only notarize the statements of the two or three witnesses that witnessed the will being signed.
    As this “technically” legal but violates the spirit of the law; I choose to avoid wills entirely. Of course medical “living wills” are OK.

    NY Section 484 of the Judiciary Law (in part)

    The execution of wills under the supervision of a notary public acting in
    effect as a lawyer, “cannot be too strongly condemned, not only for the
    reason that it means an invasion of the legal profession, but for the fact
    that testators thereby run the risk of frustrating their own solemnly
    declared intentions and rendering worthless maturely considered plans for
    the disposition of estates whose creation may have been the fruit of lives
    of industry and self-denial.” (Matter of Flynn, 142 Misc. 7.)

    Comment by Kenneth A Edelstein — January 6, 2014 @ 1:22 am

  2. Inasmuch as it is illegal for a Notary to notarize a will in NYS on their own, IF an Attorney is present, the Notary may notarize the document.

    Comment by William Ponsot — January 18, 2014 @ 1:54 am

  3. Are all states the same? I do not think in California a will is notarized, although the witness is usually notarized.

    Comment by Terry Heschke — January 18, 2014 @ 2:01 am

  4. A useful topic Discussed in wonderful , thank you for sharing.

    Comment by JacksonKell — March 2, 2016 @ 7:02 am

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