QUESTION

If a will is notarized in North Carolina but not witnessed there, is it legal?

Asked on Mar 23rd, 2013 on Estate Planning - North Carolina
More details to this question:
If the will is signed dated and notarized in North Carolina but not witnessed there but later, is it any good?
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1 ANSWER

Notarization does not make a will more or less legal. What notarization does is make a will "self-proving" meaning that the witnesses do not have to prove the signatures by signing an affidavit. To be valid in North Carolina, a will that is typed or printed MUST be witnessed by two individuals who are not beneficiaries under the will and signed by the testator. To be self-proving it would have to be notarized but that does not affect a will's validity. It is better if everyone signs in front of each other and the notary. While a will can be signed in NC and notarized and later witnessed and notarized, not all states allow this. Georgia, for example, requires everyone to sign in front of each other. I think that it is better practice to do it this way (i.e. have everyone sign in front of each other and the notary; I also think it is better to have a third-witness) because any will is valid just about everywhere. If a will is hand-written entirely in the handwriting of the testator AND found among the testator's important papers, then it only needs to be signed and does not have to be witnessed. If you have a typed/printed will that is signed but not witnessed (the notarization does not count) then the will is not valid. If a will was later witnessed, it has to be re-acknowledged by the testator and re-signed and dated and should be re-notarized. This is a mess. If the person who made the will is deceased, your best bet would be to have the will looked at by a probate attorney who can actually look at the will and determine whether it is valid. If you cannot afford a consult, then show the will to the clerk of the probate court and see if they will accept it. It may or may not make a difference depending on what probate assets were owned and who would be the beneficiary versus the heirs under the intestacy statutes. If there is substantial assets involved and if the heirs under the intestacy law would stand to benefit under the intestacy law but not under the will then you are going to be looking at a will caveat by the disgruntled heir. This is yet another example of why a person should not try to save a few bucks and make their own will and create an invalid document and then try to save it by making more of a mess. For a relatively small sum, a potentially expensive lawsuit could be easily be avoided by having a will done by a lawyer and done right.
Answered on Jul 29th, 2013 at 11:52 PM

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