Can a notary public also act as a witness to a will in California?

Generally, no. A notary cannot also be a witness if they are a beneficiary of the will. California law requires disinterested witnesses to ensure the validity of the will, and a beneficiary’s testimony is subject to scrutiny or may void their gift.

What happens if a will is signed by an interested witness (a beneficiary)?

Under California Probate Code § 6112, the gift to the interested witness is void unless there are at least two other disinterested witnesses. The will itself may still be subject to challenge, even if the proper number of disinterested witnesses are present.

What are the consequences of improper will execution?

Improper will execution can lead to the will being deemed invalid, resulting in assets being distributed according to California’s intestacy laws, potential family disputes, and unnecessary legal fees. It’s crucial to ensure proper witnessing and execution to avoid these consequences.

Can a notary act as a witness - Socal Consumer Law Center

Can a notary act as a witness?

Robert stood pale and defeated, the judge’s gavel echoing the collapse of years of careful planning. His wife’s will, meticulously drafted, was deemed invalid because the notary—the sole witness—was also a beneficiary named in the document. The emotional and financial cost was devastating, easily exceeding $50,000 in legal fees and probate complications.

Why Can’t a Notary Also Be a Witness in California?

A Temecula estate planning attorney is present for the witnessed signing of a will with two adult witnesses present in a private law office discussing: Why Cant a Notary Also Be a Witness in California

As an Estate Planning Attorney and CPA in Temecula, I frequently encounter situations where well-intentioned individuals make critical errors in will execution. A common mistake is assuming a notary public can simultaneously fulfill the roles of both notary and witness. This is generally not permitted under California law, and can lead to the entire will being invalidated. The reasoning is rooted in preventing conflicts of interest and ensuring impartial attestation. A witness must be a disinterested party, meaning they don’t stand to gain anything from the will’s provisions.

The purpose of requiring witnesses is to verify that the person signing the will is doing so willingly, understands the document, and appears to be of sound mind. A notary public verifies identity, but they do not independently confirm testamentary capacity or freedom from undue influence. When a notary is also a beneficiary, their impartiality is compromised, potentially creating a legal challenge.

What Does California Law Say About Witness Requirements?

California Probate Code dictates specific requirements for valid will execution. Generally, a will must be signed by the testator (the person making the will) in the presence of two adult witnesses. These witnesses must understand that they are witnessing the signing of a will, and they must also sign the will themselves.

However, if a witness is a beneficiary – meaning they will receive something under the will – their testimony is subject to scrutiny. California Probate Code § 6112 (the Purging Statute) states that the gift to an interested witness is void unless there are at least two other disinterested witnesses. Even then, the will itself may be open to challenge, creating significant expense and delay for your heirs.

What if the Notary Isn’t Named in the Will?

Even if the notary public isn’t explicitly named as a beneficiary, a potential conflict of interest can still exist. If the notary has a close relationship with a beneficiary – for example, a family member or business partner – their testimony could be questioned. This is because their impartiality might be perceived as compromised.

As a CPA, I also stress the importance of considering the tax implications. Improper execution can lead to unnecessary taxes or estate complications. My clients benefit from a holistic approach where estate planning and tax planning go hand-in-hand.

Remote Notarization and Witnessing During and After COVID-19

While California allowed temporary remote witnessing during the pandemic, strict adherence to current presence requirements is critical to avoid invalidation. The temporary rules have largely expired, and in-person witnessing is generally required. It’s vital to consult with an attorney to ensure compliance with the latest laws.

Furthermore, even with a properly executed will, it’s essential to ensure that it grants the necessary powers to access digital assets. Even a validly attested will must grant specific RUFADAA powers to access digital accounts.

What Happens If the Will is Invalid?

If a will is deemed invalid due to improper witnessing, the assets will be distributed according to California’s intestacy laws – meaning the laws that dictate how property is distributed when someone dies without a will. This might not align with the testator’s wishes, and can lead to family disputes. If the will fails, assets may fall under intestacy, though estates under $208,850 (effective April 1, 2025) might still avoid full probate. It’s far better to invest in proper planning upfront than to leave your family with a legal and emotional mess.

You can find more information on probate procedures at Riverside Superior Court – Probate Division.

Can a notary public act as one of the witnesses?

The “Harmless Error” rule in California allows for some leeway, but relying on it is a gamble that costs thousands in legal fees. Why risk your family’s inheritance on a judge’s discretion?

Proper Execution: Sign in the presence of two witnesses who also sign.
Self-Proving: Use an affidavit to avoid hunting down witnesses later.
Professional Help: Ensure compliance with Probate Code Section 6110.

For help with proving validity, read our post on proving a will’s validity without witnesses to ensure wishes are met. Whether you are worried about the validity of an old will or preparing to sign a new one, expert supervision is your best defense against future contests. We are dedicated to providing rigorous legal support to families in San Diego and Riverside Counties. Call us today to schedule a signing appointment and take the final step in protecting your family.

About Steve Bliss: An estate planning attorney in Temecula

The Law Firm of Steven F. Bliss Esq. is a dedicated legal firm serving Temecula, Riverside County, and the Inland Empire. Led by Steven F. Bliss, the firm offers a unique advantage: Steve is an experienced CPA & Estate Planning Lawyer.

Whether the court requires a formal probate or allows for an unsupervised process, having a skilled attorney is essential to avoid delays. Don’t face the costly and confusing legal process alone—call attorney Steve Bliss today.