Notarization Does Not Make a Will Valid

Since opening my doors in 2014, I have run into a number of misconceptions about estate planning. One of the more prevalent ones – and one with potentially devastating consequences – is that having a document notarized makes it a valid will.

Generally, to be valid under Virginia law, a will must be executed (signed) by three people: (1) the person making the will (the “testator”) and (2) two adult witnesses. There are several additional particulars regarding a will’s execution, but those are the three people involved. A notary is not one of these three people.

In addition to the will itself, there is frequently a document called a “self-proving affidavit” that is also signed by the testator and witnesses. This affidavit is a statement made by those three people saying that they are telling the truth about the testator’s mental capacity to make a will, that they saw the testator sign the will, and that they are who they say they are. They make these declarations in front of a notary, who then notarizes the affidavit. What is notarized is thus not part of the will.

So, if you have typed up a document that you intend to be your “last will and testament” and have had it notarized but not properly witnessed, it is likely not a valid will and would not hold up in court for the purposes of carrying out your wishes. (The “will kits” sold in certain office supply stores frequently fall into this category.) If in doubt, contact an attorney. Many will provide a review for free and will tell you whether your intended “will” is valid under Virginia law.