Does Maryland Law Require a Will to Be Notarized? (Understanding Self-Proving Affidavits)

Why Notarization is Often Misunderstood

A common misconception among residents in Towson, Upper Marlboro, and across the state is that a Last Will and Testament must bear a notary's stamp to be considered legal. In reality, the core requirement for validity is the presence of your signature and the signatures of two credible witnesses. However, legal professionals frequently use a tool known as a self-proving affidavit. This extra step, while optional for traditional paper wills in Maryland, can save your grieving family immense time and stress if challenges arise or out-of-state assets are involved.

If you are unsure whether your current documents meet state standards, it is possible to find experienced legal counsel through our directory. A local attorney can review your estate plan and ensure that everything is positioned for a smooth transition.

Step-by-Step Process in Maryland

Understanding how a self-proving affidavit functions requires looking at what happens during probate. When a person passes away, their will is submitted to the local Register of Wills for Baltimore County, Towson or the Orphans' Court for Prince George's County, Upper Marlboro. The court must verify that the signatures and execution formalities are legally sufficient.

Step 1: Why Notarization Speeds Up Future Probate

Under Md. Code Ann., Est. & Trusts § 4-102, a standard Maryland will requires the testator's signature and the signatures of two credible witnesses. For traditional paper wills, Maryland law under Md. Code Ann., Est. & Trusts § 5-303(1) allows the Register of Wills to admit the document to administrative probate based solely on the written attestation clause recited in the will. However, notarization remains powerful. Attaching a notarized self-proving affidavit provides sworn evidence under oath that deters will contests in judicial probate under Md. Code Ann., Est. & Trusts § 5-404. Furthermore, if you own real estate in other states that require self-proving affidavits, or execute an electronic will under Md. Code Ann., Est. & Trusts § 4-102, notarization prevents the probate court from requiring live testimony from your witnesses.

Step 2: Can a Notary Also Be a Witness?

A frequent question is whether the notary can double as one of the two required witnesses. Generally, a notary is expected to act as an impartial official who verifies the identities of the signers and administers oaths. While an individual who acts as a notary could theoretically count as a subscribing witness under certain conditions, best legal practice dictates using two independent witnesses plus a separate notary public. In Maryland, an attestation clause signed by two independent witnesses constitutes prima facie evidence that all statutory execution formalities were fulfilled, establishing a presumption of due execution as recognized in McIntyre v. Saltysiak, 205 Md. 415 (MD Court of Appeals 1954). Having a separate notary prevents conflicts of interest and shields the document from procedural challenges.

Step 3: What Happens if You Only Have Signatures

If you execute your will with only the bare signatures of two witnesses and omit a formal attestation clause, the will is still technically valid, but probate becomes far more complicated. Without an attestation recital, the statutory presumption under Md. Code Ann., Est. & Trusts § 5-303(1) does not apply. Instead, under Md. Code Ann., Est. & Trusts § 5-303(2), the Register of Wills will require formal proof of execution. If the witnesses have moved away, passed away, or are difficult to locate, the estate administration process stalls, delaying the appointment of the personal representative and the distribution of assets.

Step 4: Using Official Forms and Affidavits

During the probate phase, the named executor files Form 1112, Maryland, Register of Wills, Petition for Administration of Regular Estate to open administration. If the will contains a proper attestation clause or a self-proving affidavit, the Register of Wills admits it without supplementary witness testimony. However, if the will lacks an attestation clause, the proponent must locate a witness or someone with personal knowledge to file Form 1102, Maryland, Register of Wills, Proof of Execution of Will pursuant to Md. Rule 6-152. Properly executing the will with an attestation clause and an optional self-proving affidavit completely eliminates the need for Form 1102.

How Much Does it Cost in Maryland?

Adding a self-proving affidavit is one of the most cost-effective legal strategies available. The actual cost of notarization is minimal compared to the legal fees saved during probate.

How Long Does the Process Take?

Executing an attestation clause and self-proving affidavit takes only an additional 5 to 10 minutes during your will-signing ceremony. When a will includes a valid attestation clause, administrative probate in Maryland generally opens within a few weeks. Without this proper recital or when witnesses must be located for proof of execution, delays of several weeks or months can occur before letters of administration are issued.

Frequently Asked Questions (FAQ)