Month: January 2025

What are our “Minimum Requirements” for Notarizing a Last Will and Testament in New York State?

At White Plains Apostille and Mobile Notary, we are committed to providing professional notary services while adhering strictly to legal and ethical guidelines. It is crucial to understand that we are prohibited by law from offering any form of legal advice. Our role is limited to notarization services, and we have established specific minimum requirements for notarizing Last Wills and Testaments to protect our notaries and prevent potential material defects that could be discovered during probate court proceedings.

We emphasize that we are not acting as estate planning attorneys, nor can we provide guidance on the content or structure of your Will. Our requirements are solely related to the notarization process. With that in mind, it’s important to note that in New York State, a Will does not legally require notarization to be valid. However, many individuals opt for notarization as an additional precaution. Notarization can make the will “self-proving,” which simplifies the probate process by eliminating the need to locate witnesses after the testator’s death.

Here are the minimum requirements for our notaries to notarize your Last Will and Testament:

1. Presence of the Testator:
   The person making the will (testator) must be physically present before the notary.
2. Identification:
   The testator must provide valid, government-issued photo identification to the notary. In addition, if the testator is in a hospital setting, we will verify the information through the wrist band and nurses station.
3. Acknowledgment or Oath:
   The testator must either acknowledge their signature or sign the Will in the presence of the notary. In a hospital setting we will always photograph the actual signing (just the hand and pen) clearly displaying the hand, the wrist band and signature “while signing”.
4. Notary Block (Acknowledgement):
   The Will must have a space for the notary to affix their stamp and signature. If your will does not have the proper signature block, or otherwise known as an “acknowledgment”, we will add that stamp. If there is not enough room on the signature page, we will not notarize the signature. Our company policy allows us to add acknowledgment stamps, but does not permit us to add or delete pages because this would be considered modifying your original document.
5. Testator & Witness Signatures:
   As an additional level of security, our company policy prefers to acknowledge the signatures of both the testator and the witnesses.

While these are the requirements for notarization, it’s crucial to understand that a valid will in New York State has its own set of requirements, as outlined in the Estates, Powers and Trusts Law (EPTL):

1. Age Requirement:
   The testator must be at least 18 years old. (EPTL § 3-1.1)
2. Mental Capacity:
   The testator must be of sound mind and memory. (EPTL § 3-1.1)
3. Writing Requirement:
   The Will must be in writing. (EPTL § 3-2.1(a))
4. Signature Requirements:

• The Will must be signed at the end by the testator or, in the testator’s name, by another person in the testator’s presence and by their direction. (EPTL § 3-2.1(a)(1))
• If not signed by the testator, the person signing must sign and affix their address in the presence of the testator. (EPTL § 3-2.1(a)(1))

1. Witness Requirements:

• At least two attesting witnesses are required. (EPTL § 3-2.1(a)(2))
• The witnesses must sign within 30 days of each other. (EPTL § 3-2.1(a)(2))
• The witnesses must sign at the end of the Will at the request of the testator. (EPTL § 3-2.1(a)(2))
• The witnesses must sign in the presence of the testator. (EPTL § 3-2.1(a)(2))

Important Final Note: There is no statutory requirement for a formal “reading of the will” or for any specific attestation by the testator beyond the execution requirements listed above. However, our notaries may ask the testator if they are fully aware of what they are signing and if they are signing the document of their own free will. This practice should not be confused with a Jurat, which is a different notarial act. These questions are part of our due diligence process to ensure the testator’s understanding and voluntary participation.

We always emphatically recommend that Last Wills and Testaments be prepared by an estate planning attorney. When an attorney is involved, they can fully explain the Will to the testator, ensuring complete understanding. In such cases, we make extensive notes in our executive log, which are included as part of your final statement. These notes can be used in probate court proceedings to demonstrate that the testator was fully aware of the document they were signing, potentially preventing future disputes about the testator’s comprehension or intent.​​​​​​​​​​​​​​​​

Disclaimer:
White Plains Apostille and Mobile Notary advises consulting an attorney whenever estate documents are drafted. This information sheet is provided as a general guide and represents our personal understanding of the law. It does not constitute legal advice. The New York Estates, Powers and Trusts Law does not mandate the involvement of attorneys in will drafting or execution. However, seeking legal counsel is recommended to ensure your will accurately reflects your intentions and meets all legal requirements.