Is the will invalid?

[TruthFire]

I live in California. My grandfather created a will before he died, leaving me his entire estate. This will was notarized, but there were no witnesses to the signing of this will. Can it still be used to inherit my grandfather's estate, or is it completely worthless because it wasn't signed with witnesses present?

 

[FlyingRon]

Since the will fails to meet the requirements for self-proving (specifically TWO witnesses, who attest to certain things regarding the person making the will. Since you don't have this, you will need to have the validity of the will determined by the court. This will take an attorney. How large is the estate?

 

[Zigner]

I live in California. My grandfather created a will before he died, leaving me his entire estate. This will was notarized, but there were no witnesses to the signing of this will. Can it still be used to inherit my grandfather's estate, or is it completely worthless because it wasn't signed with witnesses present?

I am curious as to what notary performed a notarization on a will in California. We don't notarize wills.

Is the will written 100% in his own handwriting?
In what state was the will created?

 

[adjusterjack]

I live in California. My grandfather created a will before he died, leaving me his entire estate. This will was notarized, but there were no witnesses to the signing of this will. Can it still be used to inherit my grandfather's estate, or is it completely worthless because it wasn't signed with witnesses present?

If the estate is in CA see CA probate code sections 6110 and 6111.

http://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=PROB&division=6.&title=&part=1.&chapter=2.&article=

 

[Taxing Matters]

I live in California. My grandfather created a will before he died, leaving me his entire estate. This will was notarized, but there were no witnesses to the signing of this will. Can it still be used to inherit my grandfather's estate, or is it completely worthless because it wasn't signed with witnesses present?

In what state was your grandfather residing when he made the will, and in what state was he residing when he died? Was the will entirely handwritten or was it typed? Apart from the notary and your grandfather, did anyone else sign the will?

In general the rule is that a will that lacks sufficient witnesses is not valid and thus worthless. In some states an exception is made for holographic wills. Holographic wills are those that are entirely handwritten by the testator (person making the will) and signed by the testator. It is possible that the notary might count for one of the necessary witnesses.

 

[Taxing Matters]

I am curious as to what notary performed a notarization on a will in California. We don't notarize wills.

Notarization is not required. But it is not uncommon to see it done anyway. In my practice I always do the self-proving affidavit to go along with the will, and the signatures on the affidavit are required to be notarized, so I have both the will and affidavit notarized when the client and witnesses sign them as there no downside to that and can be useful later if the will execution is challenged after the testator dies.

 

[Zigner]

Notarization is not required. But it is not uncommon to see it done anyway. In my practice I always do the self-proving affidavit to go along with the will, and the signatures on the affidavit are required to be notarized, so I have both the will and affidavit notarized when the client and witnesses sign them as there no downside to that and can be useful later if the will execution is challenged after the testator dies.

As an attorney, you are in a position to do so because any "advice" you gave for the preparation of the will, or any choice of the notarial act to be performed would not get you in trouble for the unauthorized practice of law. As a non-attorney notary, if asked I would strongly advise the requestor to speak to an attorney before requesting a notarization (and that's what my instructional classes have always advised us to do).

I do agree that there's no prohibition on notarizing a will in CA, generally speaking.

EDITED to add the "no" in my last sentence.

 

[Taxing Matters]

As a non-attorney notary, if asked I would strongly advise the requestor to speak to an attorney before requesting a notarization (and that's what my instructional classes have always advised us to do).

I agree, a notary could not give advice as to whether notarization is required or what the requirements are for execution of the will, as that would be the unauthorized practice of law. But at least in the states I practice the notary certainly may notarize a will if asked without any problems. Indeed, they may notarize pretty much anything a customer wants notarized. Whether that notarization does any good would be a different matter, of course. A lot of people misunderstand what notarization does and when it is really needed or helpful, as you know.

 

[TrustUser]

i think a notary on a will is a good precaution

 

[FlyingRon]

Assuming grandfather made the will and died in California, I wouldn't say the unwitnessed will is useless. It just needs to be proved in court to meet PROB 6110 (c)(2).

 

[TruthFire]

Since the will fails to meet the requirements for self-proving (specifically TWO witnesses, who attest to certain things regarding the person making the will. Since you don't have this, you will need to have the validity of the will determined by the court. This will take an attorney. How large is the estate?

Hello FlyingRon. The estate is worth approximately $15,000, and the debt that could be counted against the estate is about $16,000. My wife and I would prefer not to go through probate though, as the furniture is valuable to us for sentimental reasons.

 

[TruthFire]

I am curious as to what notary performed a notarization on a will in California. We don't notarize wills.

Is the will written 100% in his own handwriting?
In what state was the will created?

Hello Zigner! The will was created in California, but was not handwritten.

 

[TruthFire]

In what state was your grandfather residing when he made the will, and in what state was he residing when he died? Was the will entirely handwritten or was it typed? Apart from the notary and your grandfather, did anyone else sign the will?

In general the rule is that a will that lacks sufficient witnesses is not valid and thus worthless. In some states an exception is made for holographic wills. Holographic wills are those that are entirely handwritten by the testator (person making the will) and signed by the testator. It is possible that the notary might count for one of the necessary witnesses.

Hello Taxing Matters! My grandfather was residing in California when the will was created, and when he died. The will was typed, and there are no other signatures on the will besides him and the notarist.

 

[Zigner]

Hello Taxing Matters! My grandfather was residing in California when the will was created, and when he died. The will was typed, and there are no other signatures on the will besides him and the notarist.

Based on this, it does not sound like the will is valid. You should run it by a local attorney just to make sure, but I'm pretty darned sure about it.

 

[bcr229]

Hello Taxing Matters! My grandfather was residing in California when the will was created, and when he died. The will was typed, and there are no other signatures on the will besides him and the notarist.

1) I understand that the plural of anecdote is not data, and that WV, where my mom passed away, is not CA.

2) The above is exactly how my mom did her Will because she was too cheap to go to an attorney to have it done properly. The court said it was no good without the two witness signatures, and thus she died intestate. This is why I tell people it's well worth the cost to have a Will drafted by an attorney.