Disclaimer: The information provided in this article is for general educational purposes to assist New York residents, estate planners, and families with understanding the notary process for wills and testamentary documents. This content does not constitute legal or financial advice. New York State laws, specifically the Estates, Powers and Trusts Law (EPTL), and Notary Public regulations may change over time. The author assumes no liability for any errors, omissions, or results arising from the use of this content. Always consult a qualified New York estate planning attorney before executing your final will and testament.
The Weight of the Pen
When you sit down to draft your Final Will and Testament, you are engaging in one of the most profound acts of stewardship a person can undertake. You are making decisions that will ripple through the lives of your loved ones, protecting your assets, naming guardians for minor children, and ensuring your final wishes are honored long after you are gone. In the Garden State of New York, where real estate values are staggering and family estates can be deeply complex, getting this document right is not just a formality – it is a necessity.
As a New York State-commissioned Remote Online Notary (RON), I have the unique privilege of guiding hundreds of clients through the signing of their estate documents every year. From young professionals in Manhattan buying their first condos to retirees in the Hudson Valley preparing to pass down family farms, the emotions at the signing table are always a mix of anxiety and solemn responsibility.
However, despite the best intentions of the testator (the person making the will) and their estate attorney, the execution phase is where documents most frequently fail. I have seen perfectly drafted wills tossed into the “re-do” pile because of a single notary error. I have seen families dragged into months of probate litigation because a signature was placed out of order. And I have seen elderly parents sign Powers of Attorney that their banks refused to accept because the notary missed a critical identity verification step.
The silver lining? Almost every notary mistake is preventable, and those that slip through the cracks are often fixable if caught early. In this comprehensive guide, we will explore the five most common notary mistakes that can invalidate your estate plan, how the Remote Online Notary process impacts wills, and a deep dive into the questions I hear most often regarding Power of Attorney notarizations for aging parents.
The Critical Role of the New York Notary
Before we dive into the mistakes, it is vital to understand what a notary public actually does when a will or estate document is on the table. A notary is not a lawyer; we do not draft the will, nor do we interpret your wishes for the probate court. Our role is that of an impartial gatekeeper.
In New York, the notary’s primary job is to verify identity, ensure the signer is acting voluntarily (free from coercion), confirm the signer is mentally competent to know what they are signing, and then affix our official commission seal and signature to the document. For estate documents, the notary also frequently notarizes a “Self-Proving Affidavit,” a separate page attached to the will that allows the document to be admitted to probate without having to track down the original witnesses years later.
Because the stakes are so high, New York State maintains strict oversight of notarial acts. When you bring a will to a notary, you are relying on a state-delegated official to ensure your document holds up in a courtroom decades from now. Let’s look at the five places where this process typically breaks down.
Mistake #1: The “Notary Stamp is Enough” Fallacy (Skipping Witnesses)
The most pervasive misconception I encounter is the belief that a will only needs a notary seal to be valid. Clients will often email me a draft of their will with only one signature block at the very bottom, reading something like: “State of New York, County of New York, Subscribed and sworn before me on this day…” and they ask, “Can you just stamp this?”
If you just stamp a will in New York, you will likely have a document that looks official but is legally hollow.
Under the New York Estates, Powers and Trusts Law (EPTL), a valid will must be signed by the testator at the end of the document. More importantly, it must be signed in the presence of at least two disinterested witnesses who also sign the will. A disinterested witness is someone who is not named as a beneficiary in the will and is not related to a beneficiary.
Why this mistake happens
Many people confuse a will with a simple affidavit or a Power of Attorney. Those documents often only require a notary. A will, however, requires a specific ceremonial execution: the testator signs, the two witnesses watch the testator sign, and then the two witnesses sign in the presence of the testator and each other.
If a notary simply sees a will with a signature on it and applies a stamp without two witnesses being present to sign alongside the testator, the execution is flawed. Even if the notary’s seal is perfectly placed, the will can be challenged in probate court for lack of witnesses.
How to avoid it
Always ensure your estate attorney drafts your will with the proper New York statutory signature blocks at the end. When you arrive for your notary session (whether in-person or via RON), bring two disinterested witnesses. These can be friends, colleagues, or even staff members at a signing office. In a Remote Online Notary session, all three parties (the testator and the two witnesses) must be present on the same live video feed simultaneously while the signatures are exchanged.
Mistake #2: Botching the Self-Proving Affidavit
Once the will is properly witnessed, New York law (specifically EPTL Section 3-3.2) allows for a “Self-Proving Affidavit.” This is an optional but highly recommended separate page attached to the back of the will.
What goes wrong
A self-proving affidavit is a sworn statement signed by the testator and the two witnesses, and notarized by a notary public. It essentially certifies in advance that the will was executed properly. The problem arises when:
- The affidavit uses out-of-state language that does not match NY statutory requirements.
- The notary fails to administer a proper oath. The testator and witnesses must be sworn in. The notary must verbally (or via RON chat/video confirmation) ask them to affirm under oath that the statements in the affidavit are true.
- The notary’s commission details are incorrect or missing. The affidavit must clearly show the notary’s name, commission expiration date, and a raised seal or digital seal equivalent.
If the self-proving affidavit is botched, the will is not necessarily invalid, but it loses its “self-proving” status. This means that when you pass away, your executor will have to physically locate those two original witnesses (who may have moved to Florida or passed away themselves) to testify in probate court about how the will was signed. This causes massive delays and unexpected legal fees for your estate.
How to avoid it
Ensure your attorney uses a New York-compliant self-proving affidavit form. During the notary session, the notary will call up each of the three signers one by one. They will raise their right hand (a digital gesture is accepted for RON), and the notary will administer the oath: “Do you swear that the facts stated in this affidavit are true and correct to the best of your knowledge?” Once all three take the oath, they sign the affidavit, and the notary applies the seal and journal entry.
Mistake #3: Pre-Signing and Improper Execution Order
New York is considered a “strict presence” state. The chronological order of signing an estate document matters immensely.
The common error
A client receives their will packet at home. Anticipating the notary will arrive in 30 minutes, they take a pen, sign their name at the bottom of the will, and sign the self-proving affidavit, then put the pen down to make a cup of coffee. When the notary arrives, the client says, “I already signed everything, can you just stamp it?”
For a standard notarization, this is fine. For a will, this is a recipe for disaster. The testator must sign the will in the physical or virtual presence of the two witnesses. The witnesses must then sign in the presence of the testator.
If the testator signs alone, walks out of the room, and then the witnesses sign, the “presence” requirement is broken. If the testator signs the will but fails to sign the self-proving affidavit after being sworn in by the notary, the affidavit is void.
How to avoid it
The golden rule of estate notarization: Do not pre-sign anything. Leave the document blank until you are standing in front of the notary (or connected to the RON video room). Let the notary guide you through the sequence. They will have you sign the will first, then call the witnesses to sign, then administer the oaths for the self-proving affidavit, and finally have all three sign the affidavit. This sequential choreography is what makes the document bulletproof in probate court.
Mistake #4: Notary Beneficiary Conflicts of Interest
Sometimes, family members volunteer their services to help out. “I’m a notary public! I can just notarize my brother’s will for free!” sounds like a great idea until you look at the New York Notary Public Law.
The conflict
While New York law does not strictly forbid a notary from notarizing a will in which they are a beneficiary, it is a massive red flag that invites immediate litigation. If a notary-beneficiary signs the notary seal on a will where they are also receiving a bequest, disgruntled siblings can argue “undue influence.” They will claim the notary pressured the testator into leaving them money.
Furthermore, a notary cannot be one of the two required disinterested witnesses if they are named in the will. A witness-beneficiary’s gift under the will is automatically voided in many states, and the probate court in NY will scrutinize the entire execution with extreme skepticism.
How to avoid it
Keep the roles separate. If you are a notary, do not name yourself as a beneficiary in the will you are notarizing. Better yet, hire a third-party notary public or use a Remote Online Notary service. It costs a standard fee (currently $15 for a notarial act in NY, or the RON platform fee), but the peace of mind it provides to your family is priceless. An impartial notary creates an objective audit trail that protects the estate from accusations of favoritism or coercion.
Mistake #5: Overlooking Competency and Undue Influence
Perhaps the most sensitive and human of all notary challenges is determining the competency of the signer, particularly when dealing with elderly parents.
The challenge
The notary is the last line of defense before a document is sealed. We are required to determine if the signer is “willing and knowledgeable.” In plain English: do they know they are signing a will? Do they understand the basics of what is on the page? Are they signing because they want to, or because their son is standing right next to them tapping his foot and saying, “Mom, just sign here so we can go to lunch”?
For clients in their 70s, 80s, and 90s, slight cognitive decline, tremors, hearing impairment, or simple fatigue can make a signing look suspicious. If a notary rushes through a session with an elderly parent who seems confused, and that parent passes away six months later, a distant relative can petition the court to invalidate the will based on “lack of testamentary capacity” at the time of signing.
How to avoid it
The notary must slow down. During a RON session, the notary will often ask open-ended questions to verify competency: “Ms. Rossi, can you tell me what this document is?” “Yes, my will.” “Are you naming your children as beneficiaries?” “Yes.” If there is any hesitation, the notary should pause the session and ask an independent third party (like an estate attorney or a geriatric care manager) to step into the video frame and vouch for the signer’s clarity of mind. For in-person signings, taking a screenshot of the video feed or having the attorney draft a concurrent “Certificate of Competency” alongside the will provides an extra layer of protection.
The Power of Attorney Connection: Your Most Pressing Questions
Whenever we talk about wills, the conversation inevitably turns to the Durable Power of Attorney (POA). In New York, the statutory “New York Statutory Short Form Power of Attorney” is the gold standard. Unlike a will, which takes effect upon death, a POA takes effect immediately (or upon a specific trigger, like incapacity) and allows your agent to manage your finances, pay your taxes, and handle your real estate while you are still alive.
Because POAs are frequently used by adult children to help manage the affairs of aging parents, my inbox is flooded with questions about how the notarization works in these delicate family situations. Here are the most common questions I receive, answered in plain language:
Q1: “My mother is 82 and lives in an assisted living facility in Westchester. She wants to sign a POA for me. Does it absolutely have to be notarized?”
A: Yes. In New York, a Power of Attorney must be signed and dated by the principal (your mother) and acknowledged before a notary public. Alternatively, it can be signed in the presence of one witness if notarization isn’t immediately possible, but for it to be widely accepted by banks, hospitals, and the Department of Motor Vehicles, a notary seal is virtually mandatory.
Q2: “My dad is bedridden and has trouble speaking clearly due to a past stroke. Can you still notarize his POA via RON?”
A: Absolutely. Remote Online Notary sessions are excellent for this. The notary will connect to your dad’s tablet or laptop via a secure video link. The notary doesn’t require the signer to deliver a perfect monologue. They need to establish that the signer is lucid and willing. If your dad can nod, write his initials on the screen, or give a soft “yes” to confirm his identity and willingness, the notary can proceed. The video recording of the session serves as a permanent record that he was acting of his own free will.
Q3: “Can I sign the POA on behalf of my mother since she has shaky hands from Parkinson’s?”
A: Yes, but the wording matters. This is called signing by “Mark” or having a designated proxy sign. Your mother will make an “X” or her best mark on the signature line, and then you can sign your own name next to it, followed by the phrase “by [Your Name], for [Mother’s Name].” The notary must witness both the mark and your signature. Alternatively, your mother can place her hand over yours and guide the pen; the notary will simply have your mother verbally acknowledge that she guided your hand.
Q4: “Do we need two witnesses for the POA, or just a notary?”
A: The standard New York Statutory Short Form POA specifically states at the bottom that it must be “Subscribed and sworn to before me” by a notary public. It does not strictly require two witnesses like a will does. However, many financial institutions are incredibly strict and prefer a witness line anyway to prevent future fraud claims. I always recommend asking your estate attorney if they want a witness included on the POA for extra security.
Q5: “My elderly parents live in Florida now, but they still own a rental property in Brooklyn. Can you (a NY notary) notarize their POA if they are sitting on their porch in Orlando?”
A: This is a tricky one. A New York notary public can generally only perform notarial acts within the geographic boundaries of New York State, even for RON sessions. If they are physically in Florida, a New York notary stamp might be questioned by local NY banks. The best route is to either: (1) Have them drive to a border state or fly back for a day, or (2) Use a Florida-compliant notary. Because the property is in NY, a NY attorney can draft a “Codicil” or a supplemental letter acknowledging the out-of-state notarization, which usually smooths over the issue with the title company.
Q6: “What identification do my aging parents need to bring for the RON session?”
A: They need a current, government-issued photo ID. A driver’s license, state ID, or valid passport works best. If their driver’s license has expired but the ID photo is still accurate, some RON platforms allow for “Credential Analysis” where they upload a photo of the ID and the platform software verifies it. If they have lost their ID, they can sometimes use a Trusted Contact Person (someone the notary knows and who knows them) to vouch for their identity, though this is less ideal for major financial documents.
Q7: “My mom gets easily distracted by the TV and her cats during a meeting. How do we keep the RON session focused?”
A: This is the number one challenge for senior signers! For the best experience, close the curtains to block out visual distractions, pause the TV, and ideally have the device on a table at eye level. If you are helping them, sit slightly to the side so you aren’t looming over the camera. Speak slowly and clearly. Notaries are trained in geriatric patience; we will go at whatever pace your parents need, pausing as often as necessary to ensure they are comfortable.
How to Fix These Mistakes
So, you’ve read this guide, and a sinking feeling hit you. You realize your will is missing a witness, or your mom’s POA was notarized years ago with a commission that may have lapsed. Don’t panic. Estate planning is not a “one-and-done” event; it is a living process.
If a will is improperly notarized or witnessed, the standard fix is “re-execution.” The attorney will prepare a fresh will, and the testator goes through the proper witnessing and notary ceremony again. The old will is shredded, and the new one is stored.
If a POA has a minor notary error (like a typo in the address but a valid seal), the notary or attorney can draft a “Corrective Affidavit” or a “Ratification of Power of Attorney” that acknowledges the original document is still the true intent of the principal, effectively patching the hole in the document.
If you are unsure, bring the document to a notary for a free pre-review. We look at the notarial certificate (the paragraph at the bottom with the date and signature lines) and can usually tell you instantly if it meets New York State standards before you even think about taking it to the bank.
Plan Ahead, Sign with Confidence
Your Final Will and Testament and your Power of Attorney are the bedrock of your family’s future security. They dictate who pays the bills, who makes the medical decisions, and who inherits the family home on the Upper West Side.
New York State has rigorous laws for good reason: to protect you from fraud, undue influence, and administrative chaos. By avoiding these five common notary mistakes – skipping witnesses, botching the self-proving affidavit, pre-signing, ignoring beneficiary conflicts, and overlooking competency – you ensure that when the time comes, your attorney won’t be fighting a battle over paperwork. They will simply open the envelope, present the clean, perfectly notarized documents to the Surrogate’s Court, and your family can focus on what really matters: remembering you and honoring your legacy.
If you are preparing to sign estate documents, ensure you have your ID ready, gather your disinterested witnesses, and allow your notary to guide you through the steps at a comfortable pace. Whether across a desk in person or through the secure, modern lens of a Remote Online Notary session, your signature is the bridge between your present life and your family’s future. Make sure it stands the test of time.
For more information about RON services in New York, visit the New York State Department of State Notary Public portal.