This page explains what one must do to properly execute end-of-life planning documents that your attorney has drafted for you. Brandli Law offers to host client’s and their witnesses at our office to be sure these documents are properly executed.
Will or Codicil
Wills and codicils (which I will refer to simply as “wills” from here on) cannot simply be signed, even if the signature is notarized. The law requires certain other formalities be followed. These formalities provide certainty that you intended to make this will. When it becomes effective, you will not be around to attest to your intentions.
To execute a will, you need two witnesses. Each witness must be over 18 years old and must be of sound mind. Because the signature of these witnesses will be notarized, the witnesses must bring a driver’s license, passport, or other valid picture ID that the notary will accept as proof of their identities.
You will also need a notary. You should verify that the notary is willing to notarize the signature of witnesses to a will. If you are asking the notary to notarize powers of attorney and/or healthcare directives (see below), you should mention these documents to the notary as well. Some notaries limit the types of documents they will notarize.
You should have with you the Last Will and Testament and the Affidavit of Attesting Witnesses. With these documents, follow these steps:
Once all of this is done, make as many copies of the will and affidavit as you wish to make. Then attach the original Affidavit of Attesting Witnesses to the back of the original Last Will and Testament.
It is important to understand that the original will has great importance. A copy of a will cannot be automatically accepted by a court. The proponent of using a copy of the will has to prove by clear and convincing evidence—a very high evidentiary standard—that the copy reflects the last will of the testator and that the testator did not cancel or destroy the will. It is difficult to prove that the testator did not cancel or destroy the will without having an undestroyed copy of that original. So the safekeeping of the original will is very important.
The will can be stored in one of two places. The best place is in some sort of fire proof safe. Alternatively, the will can be placed in a safety deposit box. I do not recommend using a safe deposit box unless there is no other safe place to keep the will. A court order will be required to open the safe deposit box after you pass. However, the worst policy is to keep the will in an unprotected file cabinet or drawer.
I suggest making a copy of the will for every possible personal representative and, unless you wish to keep the terms of your will secret until you die, every potential beneficiary. I suggest writing the word “Copy” on each copy and indicating on the copy where the original is located and how it may be retrieved. If the will is in a safe, indicate the combination or how the combination may be obtained. If it is in a safe deposit box, you should indicate the branch and box number. You may not know who will be available to retrieve your will when it is time to do so. So letting several trustworthy people know how to get your original will is important.
If at a later time you wish to modify your will, you can do this by doing a new will or by doing a codicil. (A codicil is a document that lists the amendments to a will.) A new will or codicil requires the same formalities described above: witnesses, etc. You cannot simply write changes on your will even if you sign it and even if that signature is notarized.
If you wish to destroy your will and not have one, you can simply tear up the original. Notify everyone who has a copy of your will that you have destroyed it. You can keep the torn up original as proof that it was destroyed. However, unless you wish to die without a will (which I do not recommend), the best policy is to replace an old will with a new one.
Powers of Attorney and Healthcare Directives
Powers of Attorney and Healthcare Directives require that your signature be notarized. However, they do not require witnesses. Ask the notary if he or she will notarize these types of documents.
Once signed and notarized, keep these documents with your will. Make copies for all possible attorneys-in-fact and indicate on the copies where the originals are.
You can destroy the originals of these documents to make them ineffective. Just tear them up.
Since powers of attorney can be effective while you are alive, you may find yourself wanting to revoke the authority you grant in a power of attorney but not having possession of the original. You can revoke a power of attorney by doing both of two acts: (1) notifying the attorney-in-fact in writing that you are revoking the power of attorney, and (2) recording a written revocation with the Auditor’s Office of San Juan County.
This website provides general information to the public on legal issues. These informational materials are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. You should contact Brandli Law for advice on specific legal problems.
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