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Court of Wills, Estates & Probate

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

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Notarizing Trusts

9:43 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 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., El Paso

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

Appeared November 17, 2005, Albuquerque Journal, Business Outlook 
Reprinted with permission

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