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Court of Wills, Estates & Probate

The following articles were written by former Probate Judge Merri Rudd.

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Original Legal Documents

11:47 AM
Merri Rudd

Editor's note: This column may not be quoted or reproduced in whole or part without express written permission of the author.

Q: I called your court, and your staff insisted that I must provide the original will to open a probate case in your court. Why won't a copy of the will work?

The New Mexico Uniform Probate Code requires wills presented to the probate or district court in an informal probate proceeding to be "original." If an original will is misplaced or lost, the district court, in a formal probate proceeding, has the power to accept a copy of a will under certain rules of legal evidence.

Even though wills are original, sometimes they do not look original. If all of the signatures are in black ink and the will is on photocopy-quality paper, the will may look like a copy. 

Attorneys and those signing legal documents can help judges and others know that a legal document is original. First, writing at least one signature in a different color ink, such as blue, helps show that a document is original.

The notary public's seal can also cause problems. Notaries public have two ways to validate a document. They can either: (1) purchase a rubberized stamp that is self-inking or uses an ink pad, or (2) use a seal that clamps around the page and leaves a raised imprint. There are pros and cons to each method.

The problem with the imprint method is that a plain imprint does not usually photocopy. In this respect, the inked notary stamp is superior. But others prefer the "official" feel of the raised imprint, because that is another way to prove a document is original. Some people use pencil or ink to shade the raised imprint so that it is visible when photocopied. The inked notary stamp, on the other hand, may appear to be a photocopy if it is stamped in black ink. So using an ink color other than black for the notary stamp is also helpful to those who must determine whether a document is original.

The issue of whether a document is original also comes up with trusts, contracts, advance health care directives, powers of attorney and other legal documents. Some of these documents, such as powers of attorney and advance health care directives, often contain a clause that says a copy of the document should be treated as an original. Some institutions may want to see an original and then make a copy for its records.

The county clerk's office also requires original documents for recording. A person must present the original documents, such as deeds, liens, and marriage licenses, to the county clerk's office. The clerk then makes a photocopy of the document, assigns it a page and number for recording so that it can be located later, and returns the original to the person recording it.

Documents can also be mailed to the county clerk for recording. Since they are original documents, sending them by certified mail with a return receipt requested to verify the document arrived safely is advisable.

The good news about documents recorded in the county clerk's records is that, once recorded, the clerk can usually find the document and make a certified copy of it if you need proof that it is a true and accurate copy of the original at some later date.

These details may seem like minutiae, but are important in the legal and judicial worlds.

© 2005, Albuquerque Journal, All Rights Reserved

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