Does a Will Have to Be Notarized in New York?

By Albert Goodwin, Esq., estates and probate attorney, Law Offices of Albert Goodwin, New York City

No. New York does not require a will to be notarized. A will is valid if it is signed at the end by the testator and attested by at least two witnesses, following the steps in New York Estates, Powers and Trusts Law (EPTL) § 3-2.1. A notary comes into the process only for a separate document, the self-proving affidavit, which the witnesses sign under oath so they do not have to appear in Surrogate's Court later.

This page explains what New York law requires, what the notarized affidavit does and does not do, what happens when the formalities break down, and how an attorney-supervised signing protects the will in probate.

What New York requires for a valid will

The testator (the person making the will) must be at least 18 years old and of sound mind and memory under EPTL § 3-1.1. The will must be in writing and executed under EPTL § 3-2.1(a), which sets out these steps:

1. Signature at the end: The testator signs at the end of the will. Another person may sign the testator's name in the testator's presence and at the testator's direction, but that person must also sign his or her own name and address and cannot count as one of the two witnesses. EPTL § 3-2.1(a)(1).
2. Signing or acknowledging before each witness: The testator signs in the presence of each witness, or acknowledges the signature to each witness separately. EPTL § 3-2.1(a)(2).
3. Publication: At some point during the ceremony, the testator declares to each witness that the document is his or her will. EPTL § 3-2.1(a)(3).
4. Two attesting witnesses: At least two witnesses, within one 30-day period, attest the testator's signature and, at the testator's request, sign their names and add their residence addresses at the end of the will. Leaving out an address does not invalidate the will. EPTL § 3-2.1(a)(4).

Nothing in this list calls for a notary. A will signed and witnessed this way is valid with no notarial stamp anywhere on it.

Placement of the signature matters. Under EPTL § 3-2.1(a)(1), text that follows the testator's signature is generally not given effect, and in some cases it can call the whole document into question. Additions written above the signature after the will was signed are also not given effect. Homemade wills often run into trouble here, for example with a handwritten note added below the signature line.

Is a will that was notarized but not witnessed valid?

No. A notary's stamp does not replace the two attesting witnesses. If a testator signs a will in front of a notary alone and no one else signs as a witness, the document fails EPTL § 3-2.1 and will not be admitted to probate. The estate would then pass under New York's intestacy rules as if there were no will. See our page on administering an estate without a will for how that works.

A notary can serve as one of the two witnesses if he or she actually watches the signing or hears the acknowledgment, hears the testator declare the document a will, and signs as an attesting witness. A notarial certificate alone is not an attestation, and relying on it invites a dispute. The safer practice is to have two witnesses who are not the notary.

What the self-proving affidavit does

When a will is offered for probate, Surrogate's Court Procedure Act (SCPA) § 1404 calls for the attesting witnesses to be examined about the signing. Years after the fact, witnesses may have moved, died, or forgotten the details. SCPA § 1406 offers a way around live testimony: an affidavit the witnesses sign under oath before a notary or other officer authorized to administer oaths.

Under SCPA § 1406, the court accepts the affidavit as if the witnesses had been examined in court, unless a party entitled to notice of the probate proceeding objects, or the court, for any other reason, requires the witnesses to be produced and examined.

In an uncontested New York probate, the affidavit usually means the executor does not have to locate the witnesses. That saves weeks or months. Our sample NYC probate timeline shows where witness proof fits in the process.

What the affidavit says

The affidavit is usually stapled to the will right after the witnesses' attestation clause. Each witness swears to facts like these:

• The testator signed the will at the end in the witness's presence, or acknowledged the signature to the witness.
• The testator declared the document to be his or her will.
• The witness signed as an attesting witness at the testator's request.
• At the time, the testator appeared to be over 18, of sound mind and memory, and not under any restraint or otherwise incompetent to make a will.
• The testator could read, write, and converse in English (or the will was translated), and had no impairment of sight, hearing, or speech that would affect capacity to make a valid will.
• The will was executed as a single original document and not in counterparts.

The witnesses sign the affidavit and the notary completes the jurat. Most New York attorneys have the affidavit signed at the same ceremony as the will. SCPA § 1406 does not require that timing, so a missing affidavit can sometimes be supplied later if the witnesses are still available.

The presumption of due execution when an attorney supervises

New York courts presume a will was properly executed when an attorney supervised the signing. The Court of Appeals has applied this presumption of regularity in Matter of Collins, 60 N.Y.2d 466 (1983), and Matter of Kumstar, 66 N.Y.2d 691 (1985). A signed attestation clause and a SCPA § 1406 affidavit add further support, since each records under the witnesses' signatures that the statutory steps were followed.

The presumption can be rebutted, but it is hard to overcome. Vague or faded memories from a witness usually are not enough. A challenger generally needs specific evidence that a formality was skipped, such as testimony that the testator never declared the document to be a will, or that a witness was not in the room when the testator signed or acknowledged the signature. If you are considering a challenge, our page on will contests in New York covers objections to due execution, capacity, and undue influence.

The affidavit and the presumption do different jobs. The affidavit spares the witnesses from testifying in an uncontested case. Attorney supervision and a properly completed attestation clause give the will evidentiary weight if someone does object. A non-attorney notary can take the witnesses' oath, but the notary does not supervise the ceremony, and the supervision presumption does not arise from the notary's role.

Can a beneficiary be a witness?

A beneficiary can sign as a witness, but it is a mistake. Under EPTL § 3-3.2, the will itself stays valid. However, if the will cannot be proved without that witness's testimony, the gift to the witness is void, except that the witness may keep the lesser of the gift under the will or the share he or she would have received in intestacy.

In practice, a will with only two witnesses, one of whom is a beneficiary, puts that person's inheritance at risk. Use witnesses who take nothing under the will. Spouses of beneficiaries should also be avoided, since their involvement invites questions in any later dispute.

What if the witnesses cannot be found and there is no affidavit?

A will without a self-proving affidavit can still be probated. The executor must prove the execution another way, and SCPA § 1405 provides fallbacks when attesting witnesses are dead, incompetent, outside New York, or cannot be located:

• One available witness: The Surrogate may admit the will on the testimony of the witness who can be found, if the court is satisfied with the proof.
• Proof of handwriting: If no witness is available, the court may accept proof of the testator's handwriting and the handwriting of at least one witness, along with other evidence of proper execution.
• Out-of-state witnesses: Testimony can be taken outside New York, for example by deposition, rather than requiring the witness to travel.

These routes take more time and paperwork, and the Surrogate has discretion over what proof is enough. Executors in this position should expect a longer path to letters testamentary.

Handwritten and oral wills

New York generally does not recognize a holographic will (written entirely in the testator's handwriting and not witnessed) or a nuncupative will (an oral will). EPTL § 3-2.2 makes a narrow exception for:

• members of the U.S. armed forces in actual military or naval service during a war, declared or undeclared, or another armed conflict;
• persons serving with or accompanying such a force; and
• mariners while at sea.

Even then, the will has a limited life. It becomes invalid one year after the service member's discharge, or three years after a mariner made it, if the testator is still alive and has capacity at that point. An oral will must also be clearly established by at least two witnesses. For everyone else, a handwritten note leaving property to someone is not a valid will in New York, however clear it is.

Electronic and remote-witnessed wills

New York has not adopted a statute authorizing electronic wills. A will signed on a tablet, typed with an electronic signature, or stored only as a file does not satisfy EPTL § 3-2.1. The Surrogate's Courts expect an original paper will with ink signatures.

During the COVID-19 emergency, executive orders temporarily allowed witnessing by audio-video technology. Those orders expired when the state of emergency ended in June 2021. Wills signed under them while they were in effect are judged under the rules that applied at the time, and proving them may require additional documentation.

New York now permits electronic notarization under Executive Law § 135-c. That law covers notarial acts. It does not change the witnessing requirements for a will. Bills addressing electronic wills have been introduced in Albany, so ask a New York attorney about current law before relying on any remote or electronic method.

Wills signed in another state

If a will was signed outside New York, EPTL § 3-5.1(c) treats it as validly executed here if it is in writing, signed by the testator, and executed according to New York law, the law of the place where it was signed, or the law of the testator's domicile at the time. A will that met another state's rules is generally accepted in New York probate, although proof of the other state's law may be needed.

How we run a will signing

We conduct signings the same way each time, because the steps are what the Surrogate will ask about years later. A typical ceremony in our office looks like this:

1. Who attends: The client, the supervising attorney, a notary, and at least two adult witnesses who take nothing under the will. Many New York practitioners use a third witness as a backup in case one later becomes unavailable.
2. Review: Before signing, we confirm the client has read the final will, understands it, and has no changes. Last-minute edits are made by reprinting the page, never by handwriting on the original.
3. Questions in front of the witnesses: We ask the client, in the witnesses' hearing, whether this is his or her will, whether it reflects his or her wishes, and whether he or she asks these people to act as witnesses. This covers publication and the request under EPTL § 3-2.1(a)(3) and (4).
4. Signing: The client signs at the end of the will while the witnesses watch. Many attorneys also have the client initial each page. New York law does not require initials, but they make it harder to claim a page was swapped.
5. Attestation: Each witness signs the attestation clause and writes a residence address.
6. Affidavit: The witnesses sign the SCPA § 1406 affidavit and are sworn by the notary.
7. The original: The pages stay stapled together. Removing staples later can raise questions about whether pages were changed. The client decides where the original will be kept, since probate requires the original document. See whether beneficiaries are entitled to a copy of the will for related questions.

Common execution mistakes in homemade wills

• Only one witness, or a notary in place of witnesses.
• A beneficiary or the beneficiary's spouse acting as a witness.
• Witnesses who signed on different occasions more than 30 days apart.
• Text, signatures, or notes added below the testator's signature.
• Handwritten changes on a signed will with no new signing ceremony.
• A will found only as a photocopy or scan, with no original.
• No self-proving affidavit, leaving the executor to find the witnesses years later.

If a will fails

If a will is denied probate, the estate passes under New York's intestacy statute, EPTL § 4-1.1, to the decedent's closest relatives in a fixed order, which may not match what the decedent wanted. Our estate administration page explains who inherits and how an administrator is appointed.

Talk to a New York estates attorney

If you are preparing a will, we can draft it and supervise the signing so it meets EPTL § 3-2.1 and includes a SCPA § 1406 affidavit. Learn more on our NYC wills attorney page. If you are an executor holding a will with missing witnesses, no affidavit, or a questionable signing, we can review it before you file. Some families also look at ways to avoid probate in New York for certain assets.

The Law Offices of Albert Goodwin has offices in Manhattan, Brooklyn, and Queens. Call 212-233-1233 or email [email protected].

This page provides general information about New York law and is not legal advice for any specific situation. Reading it does not create an attorney-client relationship.