Do Wills Need to be Notarized?

Most people would agree that creating a will is necessary. However, when it comes to crafting one for the first time, people tend to have questions. As estate planning lawyers, one of the questions we get asked most often is whether a will needs to be notarized. It is not necessary for a will to be legally valid; however, a notarized will can have benefits depending on what province you live in.

What is a Notarized Will?

Notarizing a will is a way for you to prove the validity of your will. It involves bringing your will to a notary public or a lawyer’s office to be signed. The benefit is that it can help prove that you were the person that signed the will and that you were of sound mind (which is a requirement of a legal will).

Does a Will Need to be Notarized in Canada?

No, a will does not need to be notarized in Canada. However, there are some requirements your will must pass for it to be legally binding.

Notarial wills tend to be more popular in Quebec because, in that province, notarized wills are not required to go through the probate process. However, keep in mind that this is only the case in Quebec and does not apply to other provinces across Canada. Even if a will is notarized in Alberta, it may still go through probate.

Requirements for a Valid Will in Alberta

For a will to be considered a legal document in Alberta, the person writing it must be over 18 years old and of sound mind. Also, they must physically sign the will since digital signatures are not accepted.

There are two main types of legal wills which are accepted: holographic wills (handwritten wills) and formal wills (typed wills). However, don’t attempt to combine the two since they are governed by different rules.

Handwritten and typed portions of a will are examined separately. As a result, some portions of your legal will may be excluded and disregarded. Therefore, ensure you create a wholly handwritten or a fully typed legal will.

Holographic Wills

Holographic wills are less conventional than typed wills. However, they are valid in Alberta as long as the hand-written will satisfies all the rules according to The Wills and Succession Act in Alberta. A testator does not need a notary for a holographic will. However, failure to meet the standards creates uncertainty for your loved ones. As such, some people prefer to have their will crafted by a wills and estate planning lawyer to ensure it is enforceable. Learn more about holographic wills here.

Typed Form Wills

If your will is typed (also known as a formal will), you must date and sign your will with two witnesses present. Your witnesses cannot be a named executor or their spouse and cannot be a named beneficiary or their spouse. This is the most common type of will.

A formal will does not need to be notarized by a legal professional; however, if it goes through the probate process your witnesses will need to sign an affidavit of execution. This document must be notarized.

Affidavit of Execution

When it comes to formal wills, an affidavit of execution may be required. This specific type of affidavit confirms that one of your witnesses was present for the signing and witnessing of your will.

Unlike a will that does not need to be notarized to be valid, an affidavit of execution must be notarized. This document must be completed if the will is required to go through the probate process.

The following is included on an affidavit of execution:

1. The name of the person who has written the will (the testator)
2. The name of the person who signed and witnessed the will (the deponent)
3. The name of the other witness who was present and signed the will
4. Questions relating to the authenticity of the will and the testator’s capacity to sign it
5. The date the affidavit was signed and witnessed
6. The signature of a lawyer or notary public

The last will and testament of the testator must be attached to the document.

When to Get an Affidavit of Execution Notarized?

An affidavit of execution does not need to be notarized at the same time the will is signed and witnessed. It can be notarized anytime between the signing and the probate process. In some cases, a testator will request that the affidavit of execution be notarized shortly after the last will and testament are signed to ensure that the probate process goes as smoothly as possible.

Otherwise, the Court may request it at the time of probate proceedings. This can delay probate proceedings and, subsequently, the distribution of inheritance.

Can You Notarize Documents Online?

Prior to the COVID-19 pandemic, you had to visit a lawyer or notary public in person to get a document notarized. However, COVID-19 emergency orders made it possible for licensed professionals to execute notarizations virtually. This is an evolving situation, so check local regulations to ensure virtual notarizations are still possible in your area at the time of this reading. Also, many law firms do not practice virtual appointments due to the complex technical requirements, costs, and risks associated with that.

What Happens if You Don’t Have a Will?

Suppose you fail to create a legally valid will in your lifetime. In that case, a judge will appoint someone to manage your estate, and your assets will be divided under the statutory rules of intestate succession.

In most cases, the estate will go to your closest living relatives. However, suppose you do not have a surviving spouse, children, parents, siblings, or next of kin. In that case, your property may become the property of the Crown.

The chosen executor, guardian of your children, and distribution of your estate may not be what you would have chosen. This tends to be especially important to parents. If you do not designate a guardian in your last will and testament, then the Court will decide on a guardian for your children.

Suppose you have children, a blended family, or other requests for specific gifts. In that case, it is highly recommended that you create a legal will. A lawyer can help you to navigate any complicated family dynamics which may need to be accommodated in the will.

Crafting a Will With a Lawyer

By no means is it necessary to hire a lawyer to handle your will; however, many people prefer to for the peace of mind it gives them. A local lawyer will help you craft a formal will that meets all the legal requirements in your province.

They can mitigate disputes by working with you to create estate planning documents that will hold up in Court. Every province has strict rules regarding the distribution of an estate, and they can change often. An estate planning lawyer will be up to date on these changes, help you reduce your family members’ burden, and answer all your legal questions.

If you are in the Calgary area, get in touch with DLegal to craft your will and other estate planning documents. We offer flat legal fees and five-star service to help make the estate planning and notary process as painless as possible.