The process following the demise of a notary

Abstract

The main aim of this Report was to combine and organise relevant laws as well as to try to answer a number of questions circling around the issue of when a Notary Public passes away. Laws regulating this issue are few and scattered; undeveloped and vague; and therefore, leave clients, Notaries and subsequently also their heirs, in anxious limbo. This Report not only looks at the process following the passing of a Notary. In fact, the Report delves into the process the Notary undergoes in anticipation of such an occurrence; followed by the post-death formalities, as well as looking at possible reforms and improvements that can be made to make this inevitable situation clearer for both the clients and the Notary together with his heirs. Having said this, a number of questions will be asked and answered; namely, inter alia: Who decides on who replaces the deceased Notary? What happens to the funds contained in the deceased’s Deposit Account? Who is responsible for any default by the deceased Notary? Do personal creditors of the Notary have any recourse against his heirs for the money deposited in his account? What happens if, due to the Notary’s demise; Acts, hypothecs, privileges, and other public writings are not registered in time? What is the process when misappropriation of funds is discovered after the Notary’s death? Does the Notarial Council have any say in this matter? Is the law regarding this inevitable occurrence clear enough to ease people’s minds; or is it difficult to ascertain and undeveloped? The choice of this title was developed mainly through an everyday discussion that occurred with a family member. The topic was that of succession, and amongst the usual generic back and forth conversation one has on such topic, one question in particular stood out, namely: We are talking a lot about what happens when I die; but if we were to look at the whole picture, what happens if the Notary dies? – Looking at the question prima facie in the context of succession, the answer is quite simple as a declaration causa mortis can be opened by any subsequent Notary Public as the will is a registered document. However, when looking at the question from a wider perspective, there was a realisation that in fact, very few Notaries are aware of the process that goes along with the death of a Notary. A further look into the subject shed light on the reality of uncertainties that circulate around this, and that further research is in fact necessary to fill in, or rather, clear the doubts and lacunae following a Notary’s demise. That being said, when mentioning Literature Review, there are not a lot of already-written inspirations to this Report. The main focus of research was in fact Chapter 55 of the Laws of Malta – Notarial Profession and Notarial Archives Act; Subsidiary Legislation 55.05 – Acts of Deceased Notaries Regulations; the official webpage of the Notarial Council; as well as discussions with Notaries, Bank representatives, Insurance Companies and Notarial Council employees.