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November 13, 2011

Can a notary witness a will or notarize one?

Can a notary act as a witness to a will — Can a notary notarize a will?
 
This is a very difficult topic to write about because notary law differs from state to state, and notary laws change over time as well in particular states.  As a general rule, a notary public is discouraged from notarizing signatures on any will.  If you are a New York Notary Public, you should probably avoid notarizing signatures on Wills under any circumstance since standards for what constitutes unauthorized practice of law in New York State for a New York Notary Public are more stringent than many other states.  I heard that notarizing a Will as a New York Notary might be considered practicing law. However, in many states, a notary can notarize signatures on a will — even though it would be meaningless.  Utah notaries are encouraged to notarize signatures on Wills if asked to since it is illegal to turn down any lawful request for a notarization. But, what about acting as a witness?
 
A notary can act as a witness, but in their capacity as an individual.
Unless your state prohibits a notary from being a witness (  have never heard of such a restriction, but it could exist), a notary can be a witness.  A Delaware Notary Public can act as a witness as an official Delaware notary act and charge a prescribed maximum notary fee.  However, in other states, a notary public may act as a witness, but in their capacity as an individual — or at least it would not be done as an official notary act recognized by their state.  On the other hand, the notary acting as a witness can also indicate that they are a commissioned notary in their state which adds credibility.  Notaries are screened before being commissioned in their respective state which makes them perhaps more credible than an average citizen (you would think).
 
Unauthorized practice of law — what does this mean?
I am not an attorney, and can not give any meaningful tutorials on what unauthorized practice of law constitutes.  As a non-attorney notary, you should avoid giving any type of advice about what type of notarization to get, what type of legal paperwork to get, or how to fill it out.  You should not draft legal documents in any state (documents to be used in court or submitted to a judge or used in conjunction with any court case).  You might be able to assist in drafting non-legal documents in many states that are to be notarized such as simple affidavits, etc.  A Florida notary public is strongly advised against helping drafting any type of documents since laws in their state are more strict about what type of advice a notary may give.  In short, each state has a different idea of what “UPL” means.  To play it safe, please read up on what your state notary laws are, and don’t draft legal documents, and don’t give advice on legal matters.
 
How many witnesses do you need for a Will?
It is standard in California, New York, Ohio, Arizona,  and  most other states for a Will to require two witness signatures. I read on findlaw.com that Vermont requires three witnesses to sign a Will.  Witnesses must be 18 years of age or older in any state.  A notary can be one of those witnesses.
 
How do you document witnesses?
It is not a crime for a notary public to notarize the signatures of witnesses on a will, although it is improper to notarize the signature of the principal. It is always helpful for the witnesses to print their name, give their address and a phone number as documentation. You never know when they might need to be contacted.  By having witnesses’ signatures notarized, the notary has a record of the identification of the witnesses, and a prudent notary would also record their adress and maybe even their contact information.
 
What is it like to act as a witness to a will?
I have done this many times.  It is a very boring, but traditional formal proceeding. It is common to have an attorney present, a few neighbors or friends, and perhaps even a bottle of wine (for after the signing).  Everyone commonly gathers around the dining room table. Once everyone is there, then the attorney might give a quick speech, and then the principal signer signs, and then the witnesses sign in their appointed places.  Afterwards, there is lots of chatting generally. Or, you might meet in the conference room of a law office and do it there (less fun).  Many people consider a notary to be a better quality witness since they deal with signing documents as a profession and they take signatures more seriously, so I got many gigs as a witness.  I took it very seriously and watched very intently every time a signer signed!
 
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