Can a Notary Notarize a Will in Colorado?
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Yes, a Colorado notary can notarize a will, but wills have specific rules that differ from other documents. Wills have specific legal requirements that vary by state, and a notary who handles one incorrectly can create problems for the signer’s estate down the road. Colorado notaries should know the limits.
Wills Do Not Always Require Notarization
In Colorado, a will is valid if it is signed by the testator (the person making the will) and witnessed by two competent adults who sign in the testator’s presence. Notarization is not required for a basic will to be valid under Colorado probate law (CRS 15-11-502).
However, many estate planning attorneys include notarization as part of the will execution process to create a self-proving will, which is a stronger version that simplifies the probate process.
Self-Proving Affidavits
A self-proving will includes a notarized affidavit from the testator and the two witnesses, sworn in front of a notary. When a will is self-proving, the probate court can accept it without having to locate the witnesses and bring them in to testify that the will is genuine. This speeds up probate.
Under CRS 15-11-504, the self-proving affidavit must be signed by the testator and both witnesses, and their signatures must be notarized. The affidavit typically uses acknowledgment certificates for all signers.
Your Role as the Notary
When you notarize a self-proving affidavit for a will, you are notarizing the signatures on the affidavit, not the will itself. Your job is the same as with any acknowledgment:
- Verify the identity of each person signing (the testator and both witnesses).
- Confirm that each person is signing voluntarily and appears competent.
- Complete the acknowledgment certificate on the affidavit.
- Apply your seal and sign your name as commissioned.
- Record the notarial act in your journal.
Competency Matters
Wills are frequently executed by elderly or ill individuals, and competency can be a concern. As a notary, you are not qualified to make a medical determination about someone’s mental capacity. However, you can and should refuse to notarize if the signer:
- Cannot communicate coherently
- Does not appear to understand what they are signing
- Is being coached or pressured by someone in the room
- Cannot respond to basic questions about the document
Decline if you have doubts about the signer’s competency or willingness. You are never obligated to notarize a document when you have reasonable doubts about the signer’s willingness or awareness.
Holographic (Handwritten) Wills
Colorado recognizes holographic wills under CRS 15-11-503. A holographic will is entirely handwritten and signed by the testator. It does not need to be witnessed or notarized to be valid. If someone brings you a holographic will and asks you to notarize it, you can notarize the signature as an acknowledgment, but understand that the will’s validity does not depend on your notarization.
What You Cannot Do
As a notary, you have strict boundaries when it comes to wills:
- You cannot advise on the will’s contents. Unless you are a licensed attorney, you cannot suggest changes, tell someone whether a will is valid, or advise on estate planning strategy.
- You cannot prepare a will. Drafting a will for someone else constitutes the unauthorized practice of law in Colorado.
- You cannot serve as both notary and witness. If the will requires witnesses, you cannot be one of the witnesses and also the notary. The roles are separate.
- You cannot notarize your own signature on a will. If you are the testator or a beneficiary, you cannot notarize the will.
Living Wills and Advance Directives
A living will (also called a declaration as to medical treatment) is a different document from a last will and testament. Colorado’s living will statute (CRS 15-18.5) requires that the declaration be signed by the declarant and either notarized or witnessed by two adults. As a notary, you can notarize a living will just as you would any other document requiring an acknowledgment.
Hospital and Nursing Home Notarizations
Wills are often executed in hospitals or nursing homes. If you are called to notarize a will in a medical setting:
- Confirm the signer is alert and aware. Medication, illness, or sedation can affect competency.
- Ask to speak with the signer privately, without family members present, if you suspect coercion.
- Check their ID. Hospital patients may not have their driver’s license on hand, so you may need to use a passport or have the hospital provide identity verification.
- Document any unusual circumstances in your journal.
Common Questions
Does a will have to be notarized in Colorado?
No. A valid Colorado will needs the testator’s signature and two adult witnesses. Notarization is only required for the self-proving affidavit that accompanies some wills.
Can I notarize a will I prepared?
No. Preparing a will for someone else is the practice of law. If you are not an attorney, you cannot prepare legal documents, and you should not notarize documents you helped create because you would have a financial interest in the transaction.
What if only one witness shows up?
The self-proving affidavit requires both witnesses to sign and be notarized. If only one witness is present, you can notarize that witness’s signature, and the second witness can come back later for a separate notarization. Some notaries include two separate acknowledgment certificates (one for each witness) to accommodate this situation.
Can I refuse to notarize a will?
Yes. You can decline any notarization if you have concerns about the signer’s identity, willingness, competency, or the legitimacy of the transaction. With wills, the stakes are high, so trust your instincts if something does not seem right.
Should I keep a copy of the will I notarize?
No. Do not keep copies of wills or other legal documents. Record the notarial act in your journal (date, signer names, document type) but do not retain copies of the document itself. The will is a private legal document between the testator and their attorney.
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