Creating an estate plan is something everyone should address at some point in their life. Estate planning involves deciding how assets will be managed in the event of the person’s death or incapacitation. There are several steps to estate planning, which are all very important.

A person must choose beneficiaries and an executor, complete the necessary documentation, and notarize the will. While this final step is not essential, it is certainly important. A will is still legally binding without notarization, but if it is not notarized and the will is contested, the witnesses will need to go to court and testify that the testator was of sound mind and lacked any undue influence when the will was signed.

Notarizing the Will

After creating an estate plan, a person should seek the notarization of the will to make it “self-proving.” This means that when the will is enacted, the court will deem it valid on its face without having to bring in the will’s witnesses to testify that they were present when it was signed and the testator was of sound mind. This helps prevent problems that can occur without notarization like tracking down witnesses, especially as this may happen years (or decades) after the will was signed. These witnesses might well have moved away or even died.

In the states of New York and New Jersey, it is required to have the will signed by two witnesses and a notary should certify the signatures. All must be present. Moreover, it is recommended to use two “disinterested” witnesses to prevent the appearance of, and potential future claims of conflict. By “disinterested,” we mean people who are not named as beneficiaries in the will.

Once the documents are signed, the original copies must be put in a safe place, such as a fireproof safe. Parts of the estate plan should be distributed and discussed with those who may one day become involved in the plan, such as an executor or healthcare proxy.

What Can Happen if the Will Isn’t Notarized?

Unfortunately, many skip the step of notarizing their will, and it gives rise to issues when it is time to enact the will. These situations can lead to the will being contested, which is when someone makes a claim that the will is not valid for reasons such as lack of capacity by the testator or undue influence in the creation of the will. The will could be contested because of the witnesses used, or even a claim that the person making the will was not of sound mind at the time it was created. As one can imagine, these scenarios cause even more stress for family members.

Let’s consider this hypothetical case: Tom created a will and named his daughter, Jackie, the sole beneficiary. Tom passes away, and the will is enacted. Tom’s sister, Joan, thought she would be getting some inheritance and was furious to learn that she was left nothing. Joan contests the will, claiming that Tom must have been mentally ill or pressured by Jackie to leave everything to her. If the will had not been notarized, the witnesses would have been called in to testify. However, Tom had the will notarized, so the court presumed its validity. Without any evidence to the contrary, Jackie remained the sole heir.

Notarizing the will can also ensure that a person’s true wishes are followed, without delay and without involving litigation. Let’s suppose Bill’s will leaves everything to an acquaintance, Jessie, instead of family. Jessie used questionable witnesses and claims she couldn’t locate a notary at the time the will was signed. Being a notary is a serious job. This person is certified to take oaths by the state – someone who is not likely to take that role lightly and risk losing their certification. In this case, Bill’s family decides to contest the will, forcing the witnesses to come in and state under oath that he was of sound mind and not under pressure from the acquaintance at the time the will was signed. If there was bad intent, those witnesses might not show up, or could crumble under questioning by an attorney representing the family. Even so, time and resources will be needed to prove their case.

How to Avoid These Issues

Going through the process of getting a will notarized outweighs the risks that are likely to arise without notarization. At Rosenblum Law, we ensure all the necessary documents are signed in accordance with the state’s law. We arrange for a signing ceremony right at our offices. Our attorneys will also advise our clients on how best to store and distribute them so they are readily accessible when the time comes. If this is the level of professional and personalized service you’d like to receive, call us today to discuss your estate planning needs.