What comes as a surprise to many people, a Will does not need to be notarized to be a valid document. It just needs to be signed by the testator and then witnessed by two individuals. That’s basically it. No notary needed. No blood oath or blood covenant.
Now, you might be asking yourself (or your screen) “why did I sign an affidavit when I did my will?” And that is a very good question.
When it comes time to probate the Will in court after the testator has died, we do need an affidavit of the witnesses. We have two choices to satisfy that requirement:
- When the will is signed (with the two witnesses) a “self-proving affidavit” is signed at the same time and notarized; or
- Later, after the will was signed, one of the witnesses signs an affidavit attesting to the event and their signature, which is then notarized at that time.
Option #1 is the easiest and recommended option if possible. Why not do it now? Relying on Option #2 can create challenges as the witnesses may be deceased, moved, name changed, incapacitated, etc. and you can have trouble tracking down those witnesses years later. For example, a client came in last week with a will signed 36 years ago. The attorney is long deceased (I was only 15 at the time) and the firm is no longer in existence. I was initially concerned about tracking down the witnesses, but when I reviewed the Will, one of the witnesses was actually now a judge here in Polk County! Glory be.
Normally the witnesses need to be in the actual presence of the testator. As in a critical requirement. They can’t be in the next room or presented later for signing. But for now, at least temporarily, as we are going through our COVID-19 new world order, Governor Reynolds signed a proclamation that allows the witnesses to view the Will signing via a video call. This is unprecedented in decades/centuries of Wills and the laws we inherited from across the pond.
Just because the will isn’t notarized doesn’t invalidate it, but you might have some work to do in tracking down witnesses in order to have it admitted to probate down the road.