One Must be an Attorney to Adverstise as a Notario Publico

In order to become a California notary public one must basically take a notary educational course, pass the notary exam, pass a background check and obtain a notary bond. 

Conversely in Mexico, to become a notary public ("Notario Publico") one must be an attorney and pass a series of exams. Upon successful completion, the notary is given the keys to the city in which they practice. No not really. They are actually given a patent by the state government of Mexico in which they practice. 

Various documents in Mexico must be notarized, thereby an attorney will invariably be able to inspect certain documents. Such is not the case in California as there is no requirement that a notary be an attorney. Thus a notary in California, unless they are an attorney, cannot legally examine documents that are set to be notarized. The reason being is that since a notary is not a lawyer, they do not have the authority to engage in the practice of law, i.e. a law license. If the notary does engage in the practice of law, and is not an attorney, he or she exposes themselves to criminal liability. California law is specific in making it a crime to practice law without a license. Bus & P C § 6126. 

Tragically, many immigrants from Mexico have come to California and sought the services of a notary thinking that the notary is a lawyer. Almost always the notary will not be an attorney. Yet to the Mexican immigrant, they believe that the notary is really an attorney because of their cultural background. Hence, the Mexican immigrant can easily be lured into believing that the notary is a lawyer and will follow the advice they give them, which is typically erroneous or incomplete. 

In light of this, the California legislature passed the following bill (AB-1159 - creates Bus & P C § 6126.7):

It is a violation of subdivision (a) of Section 6126 for any person who is not an attorney to literally translate from English into another language, in any document, including an advertisement, stationery, letterhead, business card, or other comparable written material, any words or titles, including, but not limited to, “notary public,” “notary,” “licensed,” “attorney,” or “lawyer,” that imply that the person is an attorney. As provided in this subdivision, the literal translation of the phrase “notary public” into Spanish as “notario publico” or “notario,” is expressly prohibited.

So the next time you see the phrase “notario publico” on a sign, the person behind the sign must be an attorney or else they face financial consequences. Bus & P C § 6127.6 statute further reads:

(c) (1) In addition to any other remedies and penalties prescribed in this article, a person who violates this section shall be subject to a civil penalty not to exceed one thousand dollars ($1,000) per day for each violation, to be assessed and collected in a civil action brought by the State Bar.  

California Notary

A notary is an integral part of the estate planning process. The following 5 questions focus on this issue.

1. What does a notary do?

A notary attests the authenticity of a signature. In regular English, the notary confirms that the person signing the document is who they claim to be by requiring proof of identity.

For example, if John Baker sells his home, he needs to execute a deed. Since the deed requires a notarized signature, John will need to submit proof to the notary that he is John Baker when he signs the deed.

2. What does a notary not do?

Essentially, anything other than attesting the authenticity of a signature.

A notary does not need to be a licensed attorney to become a notary. Unfortunately, many people believe that a notary is automatically an attorney or can give legal advice regardless. The reason being is that in some countries a notary must be an attorney. For example, a notary in Mexico must also be an attorney. The result has been that numerous individuals have been swindled by unscrupulous California notaries who provided legal advice. This can often happen in the immigration field because the clients are unfamiliar with California law and unwittingly heed the advice of the notary. This is most certainly criminal as one cannot practice law without a license. Yes it is a crime to practice law without a license. The law is rather clear on this "no person shall practice law in California unless the person is an active member of the State Bar. Bus & P C § 6125. Moreover, it is likely erroneous given the lack of formal legal training by the notary.

However, many attorneys double as notaries to service their clients more efficiently. In case you are wondering, I am not a notary. I have a colleague who is a notary that handles it for me.  

3. What does a notary need as proof of identity of the signatory?

There are various ways for a notary to verify a signatory's identity. The most common method for this is proof of a driver's license.

4. Why does a notary need to be involved in the estate planning process?

A notary needs to be involved for execution requirements. Various documents require that the person signing the document have their signature be notarized. For example, since a deed must be recorded to give notice to third-parties, a notarized signature is basically required. CC §§1214;1217;1189;1181. Furthermore, a power of attorney and advance health care directive can be executed via a notary. Prob C §§ 4121; 4673-4675. Alternatively, these two documents can also be attested by 2 witnesses. Prob C §§ 4121; 4673-4675.

Of particular relevance is the fact that a revocable trust does not require a notarized signature. Many people assume that a trust must be notarized. This is simply not true. There is no California law that mandates that a trust be notarized. The reason for the notarization is out of custom and because since there are no witness requirements, a notarized signature is proof to third-parties that the settlor, the legal term for a person who creates a trust, actually signed the document. Otherwise, a nefarious character could draft a fabricated trust in order to steal the identity of another person. Thus, the notarized signature reduces the potential for fraud.

5. How much can a notary charge per signature in California?

A notary may charge up to $10 per signature. Govt C § 8211(a). Before you tell me that I'm wrong because you were charged more than that, keep in mind that a notary may also charge the cost of travel.

Living Trust Mills

A noticeable problem within the estate planning field is the proliferation of living trust mills. The following are some questions that address this problem.

1. What is a trust mill?

A trust mill is an elaborate scam concocted by nefarious insurance agents that seek to deceive consumers into purchasing costly and largely unneeded financial products, namely annuities, through the guise of providing them with a living trust.

In other words, the allure of purchasing a living trust serves as the Trojan horse, and once the sales agent has gained access to the consumer, he or she then seeks to sell largely useless financial products to the unwitting consumer.

2. How does a trust mill work?

A trust mill company will publicize a free living trust seminar at a local diner, hotel or inn in a local newspaper. Since there are legal advantages for writing a trust, such as the avoidance of probate and estate taxes, consumers are naturally intrigued by this. Also, the allure of a free meal or beverage cannot be understated as well. Consequently, interested consumers will attend the seminar.

The seminar is almost always hosted by an insurance agent who uses the title "trust advisor," "senior estate planner" or "paralegal" instead of insurance agent. These aforementioned titles have basically no legal value to them because these titles do not indicate a license to practice law independently. It is simply a facade to deceive consumers into believing that the insurance agent has the requisite legal expertise. Regardless, these sales agents sign up curious consumers at the seminar who wish to write a living trust. The sales agent then makes an initial visit to the consumers’ home to gather the necessary financial information to write the trust. The sales agent passes this information on to a person to write the actual trust document. Some trust mills actually have attorneys write the living trust while others do not. The sales agent then takes the trust document to the consumer’s home for execution. At this point, the crucial part of the scam takes place.

Armed with the consumer’s financial information, the sales agent strongly encourages the consumer to consider purchasing financial products from them, which are invariably annuities. The sales agent will often say whatever is necessary to complete the sale, or lying. The reason why the sales agent wants the consumer to purchase an annuity is because of the high commissions the sales agent will receive for selling an annuity. Meanwhile, in almost all cases, the annuity the sales agent is offering is the worst possible investment for the consumer. For reference, an annuity is basically a financial arrangement where the investor is paid a fixed sum of money for a fixed number of years for making an initial lump-sum investment. While it might sound financially attractive, the annuities that these sales agents offer often have high up-front costs and severe early withdrawal penalties. The end result is that the consumer purchases an expensive and superfluous financial product, while the sales agent walks away with a hefty commission. Or in the other words, the consumer loses and the sales agent wins.    

3. How can I spot a trust mill?

There are a couple of tell-tale signs for spotting a trust mill. First, the seminar is hosted by a non-attorney. Second, the flyer for the seminar will mention how an insurance agent may deliver the trust documents to the consumer. If you see either of these variables the seminar is probably a trust mill.  

4. How prevalent are trust mills?

Trust mills are prevalent here in California as well as the United States. For example, in 2007, the California Attorney General reached a $7.2M settlement with American Investors Life Insurance Company, Family First Insurance Services, and Family First Advanced Estate Planning for their roles in selling high-priced annuities to seniors.

 

5. Who should I contact if I have been victimized by a trust mill?

You should contact your district attorney’s office and the CA Department of Insurance consumer hotline at 1-800-927-4357. 

What is a Will

The most recognizable estate planning document is the will. Wills have been around for centuries although the relevance of wills has steadily declined due to the advent of trusts. Regardless, wills still play an important role in the estate planning process as most individuals do not need a trust to efficiently and effectively transfer their estate upon their passing. Here are some frequently asked questions in regards to wills. For reference, a “testator” is the person who writes the will. 

1. What is a will? 

A will is a “document by which a person directs his or her estate to be distributed upon their death.” Black’s Law Dictionary (8th Edition, 2004). 

2. Who can write a will? 

In order to write a will, testamentary capacity, the individual must be 18 or more years of age who is of sound mind may make a will. Prob C § 6100.

Clearly the first requirement, the age restriction, is a simple requirement that requires little explanation. An individual is either at least 18 years old or not.

As for the “sound mind” aspect, it is usually evident where a person lacks the capacity to write a will. Furthermore, there is a presumption that any adult has the capacity to write a will. Prob C § 810. 

Regardless, there are occasions where the individual lacks testamentary capacity and the will’s nullification follows. For example, in one case an uncle left his estate to his attorney and his banker (quite possibly the most vilified employment combination around) rather than his nephew because he believed that his nephew had killed his mother even though the nephew had not yet been born at the time of her death. Estate of Martin (1969) 270 CA2d 506. 

3. Does a will have to be written in English? 

No, surprisingly a will does not have to be written in English in order for it to be probated. Estate of Jepson (1918) 178 C 257, 172 P 1107 (German); Estate of Guerrero (1986) 183 CA3d 723 (Spanish). However, the English language translation must be attached to the petition for probate of the will in the foreign language. Prob C § 8002(b)(2). 

4. How many pages is a will? 

A will’s length is dependent upon the testator’s ambitions. Some testators have elaborate plans as to how to distribute their estate which could take many pages to write. Whereas other testators have simple ideas for their estate’s distribution which only require a few pages to spell out. The wills that I have written are usually around 5 pages. 

5. What property can be disposed of in a will? 

A will governs the disposition of assets held solely in the testator's name that are not governed by beneficiary designation. Furthermore, if the estate is named as the beneficiary or if no designation has been made, a will can direct the distribution of such assets. 

6. When does a will become effective? 

A will becomes effective upon the testator’s death. This is in contrast to a revocable trust which becomes effective during the lifetime of the person who wrote the trust. 

7. Can I revoke a will? If so, how? 

Yes, a testator may revoke a will through two methods. A testator may revoke a will via a subsequent written instrument or through the mutilation of the previously executed will. Prob C §6120.

All the wills I write include an introductory clause which states “I revoke all wills and codicils that I have previously made.” This ensures that any client of mine will not have to worry about multiple wills floating around at the time of their passing. 

8. Can I amend a will? If so, how? 

Yes, a will can be amended. The name used for this amending document is a codicil. A codicil is a testamentary document that supplements, amends, qualifies, or republishes a prior testamentary document. Estate of Benson (1944) 62 CA2d 866. A valid codicil is part of the will to which it refers, and both instruments are construed together as one. 

9. Can a will create a trust? 

Yes, a will can create a trust. A will that creates a trust is called a testamentary trust. The necessary elements for creating a testamentary trust are identical to creating a revocable trust. 

10. Which person administers the will? 

The person entrusted with administering the will is the personal representative. 

11. Does California recognize an oral will? 

No, California does not recognize oral wills. The four kinds of wills allowable in California: witnessed, holographic, statutory and uniform international, all require that it be in writing. So please do not create a video outlining your testamentary desires, it will not work. 

12. Is a will notarized? 

No, wills are not notarized. 

No competent California attorney will tell you to get your will notarized. The reason for this is because the most common type of will, a witnessed will, requires the attestation of two witnesses. Thus, in the eyes of the law, a notary’s signature will not qualify as two witnesses. 

13. Who should witness my will? 

Any person competent to testify to the requisite facts may act as an attesting witness. Prob C §6112(a). However, there are legal consequences if the witness doubles as a beneficiary. Hence, it is prudent to have disinterested witnesses sign the will in order for a bequest to not be invalidated on the grounds that an interested witness signed the will. Of note, Probate Code §6112 does not prescribe an age requirement for a witness. In light of this, it is prudent to have the witness be at least 18 years old because minors are not exactly the most reliable witnesses. 

14. Are wills ever read? 

Yes, wills are read on television shows and in the movies.

In the real-world, however, wills are never read. Instead, wills are deposited with the local probate court. Therefore, the will because a public document whereby any person is free to inspect the will for their personal contentment. 

15. Does an attorney have to assist in the drafting of the will? 

There is no requirement that an attorney assist in the drafting of a will for a testator. A testator is free to draft a will absent the assistance of counsel. However, it is a criminal offense, namely a misdemeanor, for anybody other than an active member of the California State Bar to dispense legal advice in this state to an individual who is thinking about writing a will. Bus & P C §§ 6125-6126.

On a few occasions I have been asked to review a will that was written without the assistance of a lawyer. All of these wills were either not legally sufficient or drafted erroneously. For example, one will lacked the necessary number of witnesses while another will disposed of property outside the testator’s estate.

The people who write wills without the assistance of counsel are almost always motivated by economic reasons. There is nothing inherently wrong with being frugal. However, the problem is that these wills often fail to meet legal sufficiency or incorrectly dispose of the testator’s estate. Consequently, the testator will end up having to pay more money in the end because the previously made mistakes will need to be corrected and only then can a new will be drafted.