Notary public

[shellykat]

If a notary public signs a will as a witness, can he/she notarize the will years later after the person is deceased (another words 'back date' the will)?

 

[fredrikklaw]

Not Possible!

No, they cannot do that!

To have anything notarized, the person requesting the notarization has to be physically present before the notary public and would also have to show identification.

fredrikklaw

 

[shellykat]

Thank you for your reply. I think I might have to clarify my original post, though. The original witness is the same as the notary. In this particular will, this person signed the will as a witness. For some reason, the will was witnessed; but not notarized at the time (2006). Now, the owner of the will is deceased. The attorney for the estate realized that the 3 witness signatures and the deceased's signature were not notarized. The attorney, in order to probate the will, contacted the original 3 witnesses and found out that one witness is a notary. The attorney then had the witness cross her name off the witness line and resign the will as a notary; but back-dated to the original witness date. So the notary was present at the signing of the will by the deceased and the other two witnesses. I do not know if this witness checked identification of the deceased and the witnesses at that time. Is it legal for this notary to sign the will now (after the person is deceased and years later) but back-date the notary signature to 2006?

 

[army judge]

Thank you for your reply. I think I might have to clarify my original post, though. The original witness is the same as the notary. In this particular will, this person signed the will as a witness. For some reason, the will was witnessed; but not notarized at the time (2006). Now, the owner of the will is deceased. The attorney for the estate realized that the 3 witness signatures and the deceased's signature were not notarized. The attorney, in order to probate the will, contacted the original 3 witnesses and found out that one witness is a notary. The attorney then had the witness cross her name off the witness line and resign the will as a notary; but back-dated to the original witness date. So the notary was present at the signing of the will by the deceased and the other two witnesses. I do not know if this witness checked identification of the deceased and the witnesses at that time. Is it legal for this notary to sign the will now (after the person is deceased and years later) but back-date the notary signature to 2006?

If you require more information, go to the website links I've provided.

A New York Will must be:

* In writing;
* Signed at the end by the testator (person making the Will);
* In the presence of two or more attesting witnesses. § 3-2.1

Do not try to add any matter (writing) after the testator's formal signature. Generally, the law doesn't give any effect to such writing (other than the formal attestation clause). Even though it's generally disregarded, any text or characters after the signature can cause complex legal problems.

The Will must be witnessed in accordance with New York Will requirements, which state:

* the testator must advise each witness that the document is his/her Will (witnesses are not required to know the contents);
* the witnesses must observe the testator signing the Will and observe each other sign;
* each witness must sign their name and affix their residential address at the end of the Will. § 3-2.1

The witnesses are required to attest and sign the Will within 30 days of observing the testator's signature to the Will. However, it is most prudent to have all parties sign at the same time.

Self-proving your New York Will

In order to provide added authentication to your New York Last Will and Testament, you may ask your witnesses to sign an affidavit. The self-prove affidavits can be produced in court with the Will in order to facilitate the probate process. This is beneficial for proving the Will complies with New York Will requirements, in case any of the witnesses die or cannot be found after your death.

The affidavit needs to be signed before any officer authorized to administer oaths. It must state the necessary facts to establish the genuineness of the Will, the validity of its execution and that the testator at the time of execution was in all respects competent to make a Will and not under any restraint. § 1406

Attorneys highly recommend having your Will self proved.

http://newyorkwill.org/new-york-will-requirements/

In New York, the laws regarding the valid execution and witnessing of a Will are set forth in the New York Estates, Powers and Trusts Code, Article 3 Substantive Law of Wills, Part 1 Who May Make and Receive Testamentary Dispositions of Property, What Property May be Disposed of by Will, Section 1.1, and, Part 2 Execution of Wills, Section 2.1.

In New York, any person eighteen (18) years of age, or a minor lawfully married, and of sound mind may make a Will. (See: Section 3-1.1) "Sound mind" generally means someone who has not been deemed incompetent in a prior legal proceeding.

A Will must be in writing, signed by the testator and by two witnesses. Each witness must sign the Will in the testator's presence within thirty (30) days of the testator's signing and should place their address of residence with their signatures. (See: Section 3-1.1) If the testator cannot physically sign his name he may direct another party to do so. The person who signs the testator's name must state on the Will they did so, must sign their own name and state their address of residence. This party may not be one of the two required witnesses. (See: Section 3-2.1)

Generally, it is recommended that the witnesses to the Will be "disinterested", which means that they are not a beneficiary of the Will. In New York, any gift to a witness is void unless there are at least two disinterested witnesses to the Will. (See: Section 3-3.2)

At this time New York does not allow for self-proving a Will.


http://resources.lawinfo.com/en/Art...-requirements-for-a-last-will-and-testam.html

http://www.ehow.com/list_6009310_probate-requirements-new-york.html

 

[shellykat]

Thank you for the help so far. However, I do not need any help with the will. What I'm looking for is information regarding what a notary public can or can't do. Can a notary back-date a will? Does anyone have any information about this?