In Texas, any officer authorized to administer oaths can notarize the self-proving affidavit attached to your will, as long as that person has no financial interest in your estate. That category includes commissioned notaries public, judges, and court clerks under Texas Civil Practice and Remedies Code Chapter 121.1State of Texas. Texas Civil Practice and Remedies Code Chapter 121 – Acknowledgments A notary is almost always the easiest choice, but knowing who qualifies, and more importantly who is disqualified, matters: picking the wrong person can turn a simple probate into a contested one.
The Will Itself Does Not Have to Be Notarized
Before worrying about who signs and seals, know this: a Texas will does not need a notary to be valid. Under Texas Estates Code Section 251.051, a typed or printed will needs only to be in writing, signed by you (or by someone else at your direction and in your presence), and signed by at least two credible witnesses who are 14 or older.2State of Texas. Texas Estates Code Chapter 251 – Fundamental Requirements and Provisions Relating to Wills
What the notary actually handles is a separate document, the self-proving affidavit. It’s a sworn statement attached to the will where you and your witnesses confirm, before a notary, that the will was signed voluntarily and that you were of sound mind.3State of Texas. Texas Estates Code 251-104 With the affidavit in place, the probate court accepts it as if the witnesses had appeared in person. Without one, the court has to track down a witness to testify years later, when they may have moved, lost capacity, or died.
Who Qualifies to Notarize Your Will’s Affidavit
Texas Estates Code Section 251.104 requires the affidavit to be made “before an officer authorized to administer oaths,” and the officer must affix an official seal.3State of Texas. Texas Estates Code 251-104 That broader category includes:
- A commissioned Texas notary public.
- A Texas judge.
- A Texas court clerk.
Any of them has the authority under Civil Practice and Remedies Code Chapter 121.1State of Texas. Texas Civil Practice and Remedies Code Chapter 121 – Acknowledgments In the real world almost everyone uses a notary, because notaries are easy to find at banks, law offices, shipping stores, and title companies. Judges and clerks don’t typically sit for this sort of errand, but they can.
Whoever you use must hold a current commission on the day of signing. A notary whose commission has expired cannot perform a valid notarization, and that defect carries over to the affidavit.
Who Should Not Notarize Your Will
The disqualifying rule is simple: a notary who has a direct financial or beneficial interest in the transaction should not perform the notarization. For a will, that means the following people should not serve as your notary:
- Anyone named as a beneficiary or heir in the will.
- Anyone named as executor.
- The spouse of any beneficiary, heir, or executor, because their financial interests overlap.
Texas Government Code Chapter 406 governs notarial conduct and sets penalties for improper notarizations.4State of Texas. Texas Government Code Chapter 406 – Notary Public Even in cases where an interested notary’s involvement wouldn’t automatically void a will, it gives any disappointed relative an easy angle for a challenge: the notary had a motive to influence the process. Use someone with no personal or financial tie to anyone in the document.
Don’t Let a Beneficiary Serve as a Witness Either
A related mistake trips people up constantly. Choosing a witness who is also named as a beneficiary doesn’t automatically invalidate the will, but the price can be steep. Under Texas Estates Code Section 254.002, if a witness is also a beneficiary and the will cannot be established through other evidence, that witness’s bequest is voided. The witness keeps only what they would have inherited under intestacy rules, and only up to the amount the will left them.5State of Texas. Texas Estates Code 254-002 The fix is the same as with the notary: pick people who have nothing to gain.
Can a Remote Online Notary Do It?
Texas allows commissioned notaries who hold an additional online notary certification to perform remote notarizations by audio-visual technology.6Office of the Texas Secretary of State. Getting Started as an Online Notary For a homebound testator or one far from a convenient notary, that can be a practical route.
One caution. The Estates Code requires that the affidavit be made “before” the officer, and the interaction between that language and video-conference appearances has not been broadly tested by Texas courts in every probate context. If you go the remote route, confirm with an estate planning attorney that the notary follows the procedures under both Government Code Chapter 406, Subchapter C and the Estates Code.
What If the Notarization Turns Out to Be Flawed
A mistake by the notary does not destroy your will. Because notarization is not required for validity in Texas, a defective affidavit simply means the will is no longer self-proving.2State of Texas. Texas Estates Code Chapter 251 – Fundamental Requirements and Provisions Relating to Wills The probate court falls back on the standard process and requires witness testimony to prove it up.
Common defects include an expired commission at the time of signing, a missing or illegible seal, or a situation where you and both witnesses were not actually in the notary’s presence at the same time. If your witnesses are still alive and competent, you can usually fix the problem by re-executing the affidavit with a properly commissioned, disinterested notary. The real risk is waiting. Once witnesses die or disappear, a defective affidavit can turn an uncontested probate into a drawn-out, expensive one. Picking the right notary at the outset is a small step that heads off a large problem later.