the Probate Judge—Notarizing Trusts
Rudd, appeared November 17, 2005, Albuquerque Journal, Business Outlook
Reprinted with permission
- Editor's note: This
column may not be quoted or reproduced in whole or part without express written
permission of the author.
Q: I am an estate planning and probate attorney in Texas and practice law
in New Mexico on a fairly regularly basis. I read your book and I noticed
in two different places that you state in bold that New Mexico trust agreements
(and amendments to trust agreements) must be signed before a notary public.
I have been unable to find any authority in New Mexico that states that a
trust agreement must be signed before a notary public in order to be valid.
I have spoken with two attorneys in Las Cruces who both have substantial estate
planning experience and neither of them knows of any authority in New Mexico
that requires trust agreements to be notarized. However, they both stated
that they had never seen a trust agreement in New Mexico that was not notarized.
Can you give me your thoughts regarding why you state so strongly in your
book that New Mexico trust agreements must be signed before a notary? A.D.G.,
I believe notarization is more a precaution than a requirement. Unlike
wills, trusts do not require witnesses, so the notary is a safeguard. When
a person signs in the presence of a notary, the notary must verify the person's
identity, thereby reducing the chance of fraud, coercion or someone pretending
to be the trustor. I suspect the custom of notarization has evolved because
it is a simple, common sense tool to avoid future problems.
Shockingly, in New Mexico people have posed or attempted to pose as others
when signing a will or trust. If the notary does not check the identification
of people not personally known to him or her, the notary is violating New
Mexico's laws governing notaries public.
Also, since the trust document will be used to change the titles on a person's
assets, the notary's 'authority' that the person was present, showed identification,
and signed the trust helps ensure that the trust is honored.
Notarization should make title companies, banks, brokerages and other financial
institutions more comfortable about accepting the trust document. Imagine
how frustrating it would be to show up at the bank and have your unnotarized
(but fully paid for) trust rejected.
By the way, I do not think the law requires financial powers of attorney to
be notarized either, but the power of attorney form in the law includes a
notarization block. And banks here do not usually accept unnotarized financial
powers of attorney. On the other hand, unnotarized health care powers of attorney
should be accepted by health care providers and institutions.
Deeds to real property are also acknowledged and signed in the presence of
a notary public. Unlike trust law, the law containing the form of deeds includes
an "acknowledgment" provision for the grantor and notary's signatures.
County clerks cannot record documents that are not notarized or certified.
The law reads, "Any instrument of writing, duly acknowledged and certified,
may be filed and recorded. Any instrument of writing, not duly acknowledged
and certified, may not be filed and recorded, nor considered of record, though
so entered; provided, however, that judicial decrees or certified copies,
patents, land office receipts, certified copies of foreign wills duly authenticated
and instruments of writing in any manner affecting lands in the state, when
these instruments have been duly executed by an authorized public officer,
need not be acknowledged but may be filed and recorded…."
So there is another reason to acknowledge trusts in the presence of a notary
public--if the trust is ever recorded, it must be notarized.
2005, Albuquerque Journal, All Rights Reserved