FAQ: The difference between a 'living will' and a last will and testament Updated 8-29-23. 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. Here are answers to frequently asked Notary questions about the difference between “living wills” versus “last wills and testaments.” How is a ‘living will’ different from a ‘last will and testament?’ A “living will” is a written statement concerning an individual’s medical treatment wishes in the event the individual’s health prevents them from making those decisions at the time of need. A “last will and testament” is a document providing instructions for the disposition of a signer’s estate after the testator’s death. Depending on state law, it may also address other matters such as the disposition of the deceased’s remains and guardianship of the testator’s children. Thus, a “living will” operates during a person’s life, while a “last will and testament” takes effect upon the testator’s death. Are there any special rules when notarizing a ‘living will?’ No, a “living will” may be notarized like any other document. While often there are statutory rules for the execution and even notarization of a last will and testament, this is not the case with a living will. 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? It depends. A last will and testament is a complex document, and Notaries must be cautious when asked to notarize one. In some states notarizing a last will and testament is not required by law, while in others it may be one of several witnessing options. Notarization alone will not satisfy a signing or witnessing requirement if a specific procedure required by law for signing the last will and testament is not followed. A Notary who is presented with a last will and testament should notarize it only if clear instructions and an appropriate notarial certificate are provided. Even if a last will and testament is not notarized, state laws may authorize certain last wills to be made “self-proving” if affidavits of the witnesses to the signing and the acknowledgment of the testator are notarized. Any Notary may notarize these affidavits and acknowledgments. What should I do if a signer has questions about notarizing a living will or a last will and testament? Ideally, a signer should obtain directions from an attorney before requesting notarization of a living will or a last will and testament, since the slightest variance from state law may invalidate these documents. For example, some handwritten last wills may be invalidated if notarized. Notarization by itself does not make a ;last will “legal” or “valid” and it is important that Notaries not offer advice regarding preparation or the legal effects of a last will. A Notary may not determine the type of notarial act or certificate required for a last will and testament, even if asked to do so by the signer. These questions should be referred to an attorney.
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