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Notary Bulletin

FAQ: The Difference Between A 'Living Will' And A Last Will And Testament

You may be asked at some point to notarize either a “living will” or a last will and testament. While the names are very similar, these two types of documents have completely different purposes. To prevent misunderstandings that may lead to notarization errors, here are answers to some frequently asked questions about “living wills” versus wills and testaments.

How Is A ‘Living Will’ Different From A Last Will And Testament?
A last will and testament is a document providing instructions for the disposition of a signer’s estate and finances after the signer’s death. Depending on state law, it may also address such matters as disposition of the remains of the deceased and guardianship of children. A “living will,” however, refers to a written statement of a signer’s wishes concerning medical treatment in the event the signer’s health condition prevents the individual from providing instructions on his or her own behalf.

Are there any special rules when notarizing a ‘Living Will?’
No, a “living will” may be notarized normally. While there are an abundance of statutory rules for wills, this is not the case with “living wills.” Of course, all practices required by law, such as the signer appearing in person before the Notary and being positively identified, should be followed.

Can a last will and testament be notarized normally?
Last wills and testaments are complex documents, and Notaries must be careful when asked to notarize them. In some states notarization of a will is not required by law, in others it may be one of several witnessing options. A document presented to a Notary as a last will and testament should be notarized only if clear instructions and appropriate notarial certificates are provided for the Notary. Certain “self-proving” wills may require notarization of the signatures of witnesses as well as the signature of the testator.

What should I do if a signer has questions about notarizing a last will and testament?
Ideally, a signer should obtain precise directions from an attorney before requesting that a will be notarized, since the slightest variance from state law may invalidate a will. Some handwritten wills may be invalidated if notarized. Notarization by itself does not make a will “legal” or “valid” and it is important that Notaries do not offer any advice regarding preparation or the legal effects of a will. A Notary may not determine what type of notarial act or certificate is needed for a last will and testament, even if asked to do so by the signer. Such questions should be referred to a qualified attorney.

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