Notarizing will and POA

[t74]

Oklahoma

Statutes only state a notary cannot attest to own signature. While it is not the best of ideas, can the notary attest signatures for a family member if and if not named in the document. (i.e. not the named POA and one of several beneficiaries of a will) While best, is it required that the witnesses be totally independent of the person for whom they are serving as witness? The problem is the pperson signing has mental capacity but limited mobility so getting them plus witnesses to a notary's office is difficult.

 

[FlyingRon]

I don't think there's anything that prohibits it. Many times notaries are employed by a party in a commercial contract who notarize signatures on behalf of their employers.

 

[t74]

Thank you! I never thought of that analogy which is certainly common practice.

 

[Zigner]

Oklahoma

Statutes only state a notary cannot attest to own signature. While it is not the best of ideas, can the notary attest signatures for a family member if and if not named in the document. (i.e. not the named POA and one of several beneficiaries of a will) While best, is it required that the witnesses be totally independent of the person for whom they are serving as witness? The problem is the pperson signing has mental capacity but limited mobility so getting them plus witnesses to a notary's office is difficult.

As a notary, I can state that, while technically legal, I would avoid this. Why? Because there is the possibility, albeit remote, that there could be some financial or personal gain from doing this. I would suggest that the services of a mobile notary be used instead of that of the family member who is a notary.

 

[justalayman]

Of course there’s nothing wrong with acting such that it removes all doubt. There are often notaries that will come to wherever you need them, for a price of course.

 

[Taxing Matters]

Oklahoma

Statutes only state a notary cannot attest to own signature. While it is not the best of ideas, can the notary attest signatures for a family member if and if not named in the document. (i.e. not the named POA and one of several beneficiaries of a will) While best, is it required that the witnesses be totally independent of the person for whom they are serving as witness? The problem is the pperson signing has mental capacity but limited mobility so getting them plus witnesses to a notary's office is difficult.

The witnesses only need be (1) competent adults and (2) not beneficiaries under the will. Under Oklahoma law, if the witness is also a beneficiary that may result in the beneficiary being denied his/her inheritance under the will. Ok. Stat. § 84-143. So a relative, friend, neighbor, clergy, or whomever may witness the will so long as he/she is not a beneficiary of the will. There is no requirement that the person be a stranger or neutral party. Indeed, the fact that the witness knows the testator (person making the will) is generally better since they can testify that they knew the testator and that it is his/her signature on the will if needed. Note that there is no requirement that the will be notarized. Because of that, even if the notarization was bad it would not affect the validity of the will.

Oklahoma law also allows for self-proving wills. A self-proved will can eliminate the need to find the witnesses to have them testify regarding the execution of the will. A will is self proved by having the testator, witnesses, and notary sign statement that is essentially an affidavit that attests to the validity of the signatures on the will. The statute provides a form for that. See Ok. Stat. § 84-55. It is a good idea to make the will self-proving and it can be done right after the will is executed and witnessed. Here, of course, it does matter whether the notarization is good, but the state law does not prohibit family members or friends from being the notary but again the notary should not be a beneficiary of the will, as that might call into question the objectivity of the notary if there is some dispute over it. Other than that, I don't see a problem with the notary being a friend or relative of the testator, but it is probably better for the notary to be completely disinterested.

 

[Zigner]

The witnesses only need be (1) competent adults and (2) not beneficiaries under the will. Under Oklahoma law, if the witness is also a beneficiary that may result in the beneficiary being denied his/her inheritance under the will. Ok. Stat. § 84-143. So a relative, friend, neighbor, clergy, or whomever may witness the will so long as he/she is not a beneficiary of the will. There is no requirement that the person be a stranger or neutral party. Indeed, the fact that the witness knows the testator (person making the will) is generally better since they can testify that they knew the testator and that it is his/her signature on the will if needed. Note that there is no requirement that the will be notarized. Because of that, even if the notarization was bad it would not affect the validity of the will.

Oklahoma law also allows for self-proving wills. A self-proved will can eliminate the need to find the witnesses to have them testify regarding the execution of the will. A will is self proved by having the testator, witnesses, and notary sign statement that is essentially an affidavit that attests to the validity of the signatures on the will. The statute provides a form for that. See Ok. Stat. § 84-55. It is a good idea to make the will self-proving and it can be done right after the will is executed and witnessed. Here, of course, it does matter whether the notarization is good, but the state law does not prohibit family members or friends from being the notary but again the notary should not be a beneficiary of the will, as that might call into question the objectivity of the notary if there is some dispute over it. Other than that, I don't see a problem with the notary being a friend or relative of the testator, but it is probably better for the notary to be completely disinterested.

While not required for the will, the notary is required for the POA (This is true for a durable power of attorney - I haven't looked in to other types.)

 

[Mass_Shyster]

Check Oklahoma rules fir a Notary. I know in Mass a notary is not permitted to notarize a signature for a family member.

 

[Zigner]

Check Oklahoma rules fir a Notary. I know in Mass a notary is not permitted to notarize a signature for a family member.

I will start by saying that it definitely is worth double-checking the rules...however, the notary should know these rules already.

In MA, it's not quite accurate to say that a notary can't perform a notarial act for a family member. Here is the text of the law: Section 16. (a) A notary public shall not perform a notarial act if: ... (vii) the notary public is a spouse, domestic partner, parent, guardian, child or sibling of the principal, including in-law, step or half relatives, except if a principal witnesses a will or other legal document prepared by the notary public who is an attorney licensed in the commonwealth or if the notary is employed by any such attorney. (from https://malegislature.gov/Laws/GeneralLaws/PartIII/TitleI/Chapter222/Section16). As you can see, there are certain family members for which the notarial act is not allowed to be performed, but it depends on the relation of the "family member". For example, Notary Bob can notarize documents for his Aunt Betty without it being a problem (assuming the other requirements for the act are met).

 

[t74]

Thank you for the comments. I forgot about the mobile on demand since I am used to running by the bank or tag agency.

I checked OK statutes and was surprised that there were not many restrictions under notary statutes. I better look under wills. The documents have been misplaced, and I need to make sure the person has something stopgap until we can get an entirely new set.

 

[TrustUser]

when i did pour-over wills, i was always able to get employees from the credit union, to act as witnesses

 

[t74]

The problem is the person for whom the documents are being prepared is basically homebound for the last yea and the home is not setup for guests so only a very limited number of people are invited to visit. Our usual locations are handicapped accessible with difficulty (parking, etc.). We need to get witnesses and notary and person in the same place.

 

[PayrollHRGuy]

As mentioned a mobile notary would likely be a good option in your position. DO be aware that you will likely need to provide your own witness. That isn't something a mobile notary can provide.

 

[t74]

As mentioned a mobile notary would likely be a good option in your position. DO be aware that you will likely need to provide your own witness. That isn't something a mobile notary can provide.

If that is my only problem with all of this, I'll be lucky.

Thanks all!