UPDATED July 2020: On July 6, 2020, Governor Cuomo signed Executive Order 202.48. This executive order extends the remote procedures permitted to execute estate planning documents under the prior executive order discussed below. Unless further extended, the ability to execute documents remotely through video conferencing through August 5, 2020.
The governor of New York executed Executive Order 202.7 on March 19, 2020 to address the unprecedented effects of the coronavirus, including the social distancing implications on notarization of documents in New York. Executive Order No. 202.7 provides that any “notarial act that is required under New York State law is authorized to be performed “ by “audio-video technology”, provided that certain conditions are met, as follows:
- The person seeking the Notary’s services, if not personally known to the Notary, must present valid photo ID to the Notary during the video conference, not merely transmit it prior to or after;
- The video conference must allow for direct interaction between the person and the Notary (e.g. no pre-recorded videos of the person signing);
- The person must affirmatively represent that he or she is physically situated in the State of New York;
- The person must transmit by fax or electronic means a legible copy of the signed document directly to the Notary on the same date it was signed;
- The Notary may notarize the transmitted copy of the document and transmit the same back to the person; and
- The Notary may repeat the notarization of the original signed document as of the date of execution provided the Notary receives such original signed document together with the electronically notarized copy within thirty days after the date of execution.
Does A Will Have To Be Notarized In New York?
No, a will does not have to be notarized for the will to be valid in New York. However, to be “self-proving” a will is required to have a notary attestation, which makes the eventual probate of the will quicker and easier.
New York SCPA 1406 entitled “Proof of will by affidavit of attesting witness out of court” governs self-proof of New York wills and states:
1. In addition to other procedures prescribed for the proof of wills, any or all of the attesting witnesses to a will may at the request of the testator or after his death, at the request of the executor named in the will or of the proponent or the attorney for the proponent or of any person interested, make an affidavit before any officer authorized to administer oaths stating such facts as would if uncontradicted establish the genuineness of the will, the validity of its execution and that the testator at the time of execution was in all respects competent to make a will and not under any restraint. The sworn statement of a witness so taken shall be accepted by the court as though it had been taken before the court, unless:
(a) a party entitled to process in the proceeding raises objection thereto or
(b) for any other reason the court may require that the witness or witnesses be produced and examined.
2. For the purposes of making the affidavit referred to in this section, after the death of the testator, the exhibition to the witnesses of a court-certified photographic reproduction of the will shall be deemed equivalent to the exhibition to them of the original will.
If a testator wants to make a will self proving under New York law, remote notarization could be used under executive order 202.7 issued in response to the coronavirus pandemic.
What Are the Requirements For A Valid Will In New York?
The requirements for a valid will in New York are:
- The will must be in writing;
- The will must be signed at the end by the testator, or in the name of the testator, by another person in his presence and by his direction;
- Two attesting witnesses must attest the testator’s signature and sign in front of the testator;
- The testator must declare to the witnesses that the instrument is the testator’s will.
Both witnesses have to sign within 30 days of each other. Failure to comply with these requirements can serve as a ground to contest a will in New York. The requirements for a valid will in New York can be found in N.Y. Estates, Powers & Trusts Law § 3-2.1.
A will does not have to be notarized to be valid under New York law. However, if a testator wants to make a will self-proving, executive order 202.7 implemented due to the coronavirus in New York would permit remote notarization.
