On February 25, 2022, New York State authorized Remote Online Notarization (RON) for the first time, joining several other states in permitting notaries to conduct notarizations remotely. The state temporarily authorized remote notary services in March 2020 during the height of the COVID-19 pandemic. However, this practice has now been permanently codified into law. Governor Hochul signed Senate Bill 1780C, and its provisions went into effect on June 20, 2022. What does this mean for New Yorkers who are drafting Wills, trusts, and Powers of Attorneys? That it is easier than ever to write self-proving Wills, which will, in turn, make the probate process a little less complex and time-consuming.
Requirements for Remote Notarization of Wills in New York
Methods of Identifying the Document Signers: To ascertain the identity of the individual signing the document, referred to as the "Principal," the law says the following:
"Identifying document signers."
(a) The methods for identifying document signers for an electronic notarization shall be the same as the methods required for a paper-based notarization; provided, however, an electronic notarization conducted utilizing communication technology shall meet the standards which have been approved through regulation by the secretary of state as acceptable. Such regulations shall include, but not be limited to:
(i) that the signal transmission shall be secure from interception through lawful means by anyone other than the persons communicating;
(ii) that the signal transmission shall be live, in real-time; and
(iii) that the technology shall permit the notary to communicate with and identify the remotely located individual at the time of the notarial act.
This means notaries have three ways to identify the signer.
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1. They can rely on their own knowledge of the signer.
2. They can use communication technology that enables them to review the signer's official and acceptable identification remotely, coupled with credential analysis and identity proofing.
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3. They can administer an oath or affirmation with the assistance of a credible witness who is acquainted with the signer and verified by the notary through the means of communication.
Furthermore, the notary must maintain real-time visual and interactive contact with the Principal during the notarization process.
Recordkeeping: Additionally, they are required to retain both the recording and a backup copy of the remote notarization for a minimum of ten years. The statute says the following:
"If video and audio conference technology has been used to ascertain a document signer's identity, the electronic notary shall keep a copy of the recording of the video and audio conference and a notation of the type of any other identification used. The recording shall be maintained for a period of at least ten years from the date of transaction."
So, copies of the identification used must also be kept on record.
Authentication: To further validate the Principal's identity, the individual must successfully answer four out of five knowledge-based authentication questions—akin to security measures for logging into a website. Once the Principal has executed the document, they must send the original to the notary public, who will then verify its authenticity. Subsequently, the notary signs and stamps the original document. As per New York State regulations, the notary must also include the following language in the jurat:
"This remote notarial act involved the use of communication technology."
Notary Public Must Be Located in New York: The law requires the notary public to be physically present within the boundaries of New York State to notarize documents. It says:
"Any notarial act authorized by section one hundred thirty-five of this article may be performed electronically as prescribed by this section if: (i) under applicable law that document may be signed with an electronic signature; and (ii) the electronic notary public is located within the state of New York at the time of the performance of an electronic notarial act using communication technology, regardless of the location of the document signer."
New York State has already implemented credential analysis procedures to validate the legitimacy of the Principal's government-issued identification, as well as procedures to utilize third-party confirmation of the Principal's identity.
Notarizing a New York Will Streamlines Probate
Notarizations are important for people who are drafting their Last Will and Testament in New York. Although the state doesn't require notarization for a Will to be legally binding, there are advantages to notarizing a Will. When a Will is notarized, it is "self-proving." A Will is "self-proving" when it incorporates an affidavit or a sworn statement signed by the witnesses. This affidavit serves as compelling evidence that the will was executed in accordance with the law and that the person who drafted the Will (referred to as the "testator") possessed the necessary testamentary capacity during the signing process.
The inclusion of a self-proving affidavit streamlines the probate process by eliminating the requirement for witnesses to testify in the New York Surrogate's Court to validate the Will's authenticity. As a result, probate proceedings are more efficient, and the assets are distributed to the beneficiaries faster. If you do not notarize your Will, the Surrogate's Court will require your witnesses to come to court and provide sworn testimony regarding the Will's execution. This is often inconvenient, and sometimes the witnesses are unavailable, or even deceased. Having a self-proving Will eliminates these headaches.
Notarize Your New York Will Online in Minutes
If you have started the process of writing your estate plan in New York, FastWill makes it easy for you to write a valid Will and have it notarized right away. Once you have identified two people who you want to witness your Will, simply arrange for them to participate in a virtual meeting with your online notary. FastWill works directly with OnlineNotaryCenter to help you notarize your Will by clicking on a Zoom link when you complete your Will. Then, you and your witnesses will meet with a notary public who will take you through the steps toward notarization in New York State.
