CO House Bill 09-1287

Legislation

State: Colorado
Signed: May 21, 2009

Effective: July 01, 2009
Chapter: 310

Summary

House Bill 09-1287 permits a will to be signed by the testator (person making the will) or a person directed by the testator who is in the testator’s presence, and acknowledged before a Notary or other officer authorized to take acknowledgments. HB 09-1287 also grants rebuttable presumption to a notarized will and to wills that are self-proved either at the same time that they are executed or anytime thereafter.

Affects

Amends Section 15-11-502, 15-11-504, and 15-12-406 of the Colorado Revised Statutes.

Changes

Except for certain holographic (handwritten) wills, permits a will to be executed by the signature of the testator (person making the will) or a person in the testator’s presence and by the testator’s direction, and either (a) signed by two persons who witnessed the testator execute the will or taken the testator’s acknowledgment, or (b) acknowledged by the testator before a Notary or other officer authorized to take acknowledgments.
Clarifies that a will executed with attesting witnesses may be simultaneously executed, attested and made self-proving by the acknowledgment of the testator and affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of Colorado.
Clarifies that a will executed with attesting witnesses may be made self-proving after its execution by the acknowledgment of the testator and affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of Colorado.
Clarifies that a contested will that is self-proved satisfies the requirements of execution without the testimony of any attesting witness upon filing the will and accompanying acknowledgment and affdavits, absent of evidence of fraud or forgery affecting the acknowledgment or affidavit.
Clarifies that a will that is notarized but not self-proved carries a rebuttable presumption to have satisfied the requirements for execution upon filing the will.
Clarifies that a will that is witnessed, but not notarized or self-proved, requires the testimony of one attesting witness to establish proper execution of the will if the witness is within the state, competent and able to testify. Other evidence, including an affidavit of an attesting witness, may establish the execution of the will. An attestation clause that is signed by the attesting witness raises a rebuttable presumption that the events recited in the clause occurred.

Analysis

House Bill 09-1287, the latest in a flurry of new legislation affecting the notarization process in Colorado this legislative session, permits a last will to be executed by the signature of the person making the will and either witnessed by two persons or acknowledged before a Notary or other officer authorized to take acknowledgments. This new provision affects all wills, except certain holographic (handwritten) wills. In addition, the new law clarifies the procedures for “self-proving” a will — establishing the authenticity of a will without the attesting witnesses having to testify in probate court after the death of the person and filing of the will. In order to make a will self-proving, the testator signature must be acknowledged and witnesses must sign affidavits before a Notary or other oath-administering officer in Colorado. These attestations are then annexed to the will. HB 09-1287 also clarifies that a self-proved will satisfies the requirements of execution unless it can be proved that the accompanying attestations were the product of forgery or fraud. Similarly, the new law states that a notarized, but not self-proved, will carries a rebuttable presumption of having satisfied the requirements for execution upon filing the will.

At a time when many states have removed the option of notarization as one means of executing a will, HB 09-1287 reaffirms the abiding value Notaries can bring to arguably one of the most important of all documents most people sign.

Read House Bill 09-1287.