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If you are thinking of executing a will, one of the many questions you may be asking is whether a will has to be notarized. Generally, in most states, a will does not have to be notarized. However, a self-proving affidavit executed by your witnesses will make the probate of your will easier because your witnesses do not have to testify anymore.
Requirements of a will
In New York, a will is validly executed if it has the following requirements:
- Testator must be at least 18 years old and of sound mind and memory. EPTL § 3-1.1.
- Testator signs the will at the end. Another person can sign the will in the name of the testator, but the signing must be done in the testator’s presence and under the testator’s direction. That person must also sign his own name. EPTL § 3-2.1(a)(1).
- Testator must sign in the presence of two witnesses or must acknowledge to each of the two witnesses that the signature in the will is his. EPTL § 3-2.1(a)(2).
- Testator must declare to the witnesses that the instrument he is signing or has signed is his will. EPTL § 3-2.1(a)(3).
- Two witnesses must, within 30 days from each other, attest the testator’s signature as affixed or acknowledged in the witnesses’ presence. EPTL § 3-2.1(a)(4).
Based on these requirements, there is no need for a will to be notarized. Aside from the testator’s capacity, the testator must simply sign the will at the end of the document in front of two witnesses or acknowledge to the two witnesses that he signed the instrument, declare to at least two witnesses that the instrument he is signing is his will, and two witnesses must attest or acknowledge the testator’s signature in the will.
However, a self-proving affidavit, which is a legal document that is a signed statement, duly sworn before a notary or a person authorized to administer oaths, can take the place of the witnesses providing live testimony in a probate proceeding. This makes it easier for probate to proceed, for as long as there is no objection to probate or will contest. For this reason, although a will does not have to be notarized, having a self-proving affidavit, executed by your witnesses before a notary, makes your will easier to be admitted to probate. Most wills nowadays include a self-proving affidavit.
Conditions of self-proving affidavit
Under SCPA § 1406, a self-proving affidavit shall be accepted by the court, as though it had been taken before the court unless:
- A party entitled to process in the proceeding raises an objection; or
- For any other reason, the court may require that the witness or witnesses be produced and examined.
Based on this provision, a self-proving affidavit will only be accepted by the court if there is no objection. An objection can only be interposed by an interested party, who is usually a distributee of the decedent. A distributee is a person entitled to inherit from the decedent under EPTL § 4-1.1 if the decedent did not die without a will.
Generally, who these distributees are depend on who survived the decedent:
| If decedent is survived by: | The following persons shall receive decedent’s estate: |
|---|---|
| Spouse and issue (children and their descendants) | $50,000 plus ½ to spouse, and balance to children or children’s descendants by representation |
| Spouse and no issue | Everything to the spouse |
| Issue and no spouse | Everything to the issue by representation |
| No spouse, no issue | Everything to the surviving parents |
| No spouse, issue, or parents | Everything to the issue of the parents by representation |
| No spouse, issue, parents, or parents’ issue | To the grandparents or issue of grandparents by representation, ½ each to the paternal and maternal side |
Presumption of proper execution with attorney supervision
Even if you have a self-proving affidavit attached to your will (which is notarized), there is no presumption of valid execution of the will. A self-proving affidavit only conditionally dispenses with the requirement of having your witnesses provide live testimony with the court in the probate proceeding.
If you would like your will to have the presumption of valid execution, you need to have an attorney draft your will and supervise its execution. With an attorney’s supervision of your will’s execution, your will enjoys the presumption of valid execution under New York case law. Although this presumption may be rebutted, courts rarely invalidate a will whose execution has been supervised by an attorney.
A word of caution
There are some notaries, authorized to administer oaths, who are not attorneys. When your witnesses execute a self-proving affidavit before a notary who is not an attorney, the self-proving affidavit only dispenses with the requirement of the witnesses providing live testimony. It does not enjoy the presumption of valid execution because an attorney did not supervise your will’s execution.
Drafting and executing a will is an estate planning tool that requires the legal expertise of a skillful estates attorney. When planning for the distribution of your estate upon your death, it is always better to have an attorney prepare the documents and supervise its execution. You do not want your will invalidated after your death and have your estate be distributed according to intestacy laws. Your estate may be given to a distant relative that you do not want to inherit from you. For this reason, it is better, not only to have your will notarized, but to have an attorney draft your will and supervise its execution.
Should you need assistance, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].
About the Author
Albert Goodwin Esq. is a licenced New York attorney with over 17 years of courtroom experience. His extensive knowledge and expertise make him well-qualified to write authoritative articles on a wide range of legal topics. He can be reached at 212-233-1233 or [email protected].
