CSG Law Alert: Remote Online Notarization in New York and New Jersey: Is It Practical for Trusts and Estates?
Remote online notarization can be a useful tool for expediting certain transactions, but it is not without its risks especially as it relates to Wills, trusts, powers of attorney, and health care directives. Because these documents involve a client’s financial future, trusts and estates professionals must take extra precautions and be aware of the challenges that remote online notarization can present to ensure these documents are executed correctly. An improperly executed document that fails to comply with state requirements can undermine carefully laid estate plans.
Notaries public, like most other providers of services, were forced to adapt to the world’s remote needs during the Covid-19 pandemic. While many states had previously adopted remote online notarization statutes, New York and New Jersey joined these states during the pandemic – 2021 for New Jersey and 2023 for New York – and allowed for some form of remote online notarization. Post-pandemic, New York and New Jersey codified their temporary regulations, and both states now permit remote online notarization.1
This article clarifies these new permanent regulations in New York and New Jersey and discusses how remote online notarization impacts estate planning.
Remote Online Notarization and Estate Planning
The notarization of estate planning documents is critical because notarization creates a presumption that the document was properly executed.
Surprisingly, a valid Will does not require notarization in New York and New Jersey. However, an accompanying self-proving affidavit to a Will requires notarization.2 Nearly all estate planning professionals use self-proving affidavits to a Will because they reduce doubts or questions about the legitimacy of the Will and allow for more expedient estate administration upon the death of a loved one. While the notarization of the self-providing affidavit can occur remotely, neither New York nor New Jersey law permits remote witnessing for Wills, which is required for a valid Will in both New York and New Jersey.3 Because attesting and witnessing a Will, for example, normally occurs during the same session with a notary who notarizes the client’s documents, having such documents remotely notarized could cause complications if the witnessing requirement does not comply with the state’s execution laws.
In addition to not allowing remote witnessing for estate planning documents, New York and New Jersey do not permit electronic signatures for most estate planning documents, which adds a further obstacle to those seeking to have their estate planning documents remotely notarized.4
However, even these restrictions may change. On November 17, 2023, New York passed a law that now allows remote witnessing for health care proxies if the remote witnessing meets certain requirements.5 This could suggest that it is only a matter of time before remote witnessing gets extended to other documents, such as Wills, at least in New York.
What is the process?
Remote online notarization closely resembles traditional notarization even though the transaction occurs through a computer. A New York or New Jersey notary public can apply to become a remote notary and add remote services. Once a notary public is authorized to perform remote online notarization, the process is fairly straightforward in both states.
Both New York and New Jersey require that the notary be physically located in their respective state when performing a remote notarization, whereas the signer can be located anywhere – even in a different country.6 Like traditional notarization, the notary will verify the signer’s identity, typically by personal identification (i.e., the notary’s personal knowledge of the signer), by an oath or affirmation from a credible witness, or with two types of identity proofing.7 New York and New Jersey also require interactive communication between the remote notary and the signer during the remote notarization process.8
What are the technology requirements?
One of the more onerous aspects for notaries public who perform remote online notarization involves the technology and storage requirements. Both New York and New Jersey require that the selected technology be able to record the act between the remote notary and the signer, which must record both the audio and video of the interaction.
While many states with remote online notarization laws require their secretary of state to approve a third-party technology provider, New York and New Jersey place this responsibility on the notary. This means that it is the notary’s responsibility to ensure that the technology they use will comply with the state’s audio-visual recording standards and that the technology has the ability to store the recordings for at least 10 years.9
In addition to maintaining and keeping the recordings for 10 years, New York and New Jersey require that a notary public maintain and keep a tangible or electronic journal of each notarization performed that includes the date and time of the notarization, the full name and address of the signer, a description of the evidence used to verify the signer’s identity, any fee charged, and the type of act performed. New York also requires the notary to include the type of communication technology used.
Challenges for Remote Online Notarization Moving Forward
Although remote online notarization can provide convenience and greater flexibility for some clients, it is not without risk. Because the use of remote online notarization has only recently developed, it remains to be seen how remotely notarized documents will stand up to scrutiny if they are contested.
As mentioned above, two critical aspects of executing valid estate planning documents involve the live witnessing and signature requirements in accordance with state law. Improperly witnessed documents can result in disastrous consequences and be time consuming for clients. During the Covid-19 pandemic, these requirements were relaxed under the temporary regulations, but the results are only now beginning to emerge as more remotely executed and notarized documents are put to the test.
In the Matter of Holmgren,10 the Queens County Surrogate’s Court dealt with the remote witnessing and execution of a Will filed for probate. In this case, the Surrogate’s Court rejected a self-proving affidavit that was signed and notarized under New York’s temporary regulations because it did not comply with the state’s remote execution requirements; specifically, the affidavit failed in several critical ways.11 First, it failed to state that the testator was personally known to the attesting witnesses or that the testator had presented valid photo identification as required under the temporary regulations.12 Second, the affidavit failed to state that the audio-visual technology “was in working order and allowed for direct interaction between the testator and the witnesses in real time.”13 Third, the affidavit failed to state whether the copy was transmitted to the witnesses on the same day.14 Finally, the Surrogate’s Court noted that the original document had both the testator and attesting witnesses’ signatures on it, which suggested that the original was re-signed afterward.15 While the Surrogate’s Court gave the petitioners an opportunity to remedy these defects,16 this case provides valuable insight into why and how a remote online notarization of critical documents could be challenged later. Holmgren also demonstrates the New York Surrogate’s Court’s willingness to uphold remotely executed and notarized documents so long as they have been executed pursuant to the state’s requirements.
In another challenge to a remotely executed Will that occurred during the pandemic (under temporary regulations), the Tompkins County (NY) Surrogate’s Court upheld the validity of the Will because there was no sign of undue influence as asserted by a daughter contesting her father’s Will.17 The Surrogate’s Court noted from the outset that the attorney complied with New York’s temporary regulations that allowed for remote online notarization.18
As with a traditional notary, both New York and New Jersey permit a remote notary concerned with the signer’s capacity to refuse service.19
Best Practices for Trusts and Estates Professionals
With so many moving parts in executing estate planning documents, prudent estate planning attorneys typically arrange to meet clients in person, normally in their offices, where they can ensure all documents are executed correctly. Meeting clients in person serves multiple purposes in addition to ensuring proper execution. First, it gives clients an opportunity to ask additional questions. Second, it allows attorneys to develop and maintain relationships with their clients. Finally, it reduces the risk of fraud because attorneys, witnesses and notaries can more easily determine the presence of undue influence or duress.
Remote online notarization has proven useful in many industries, such as real estate and banking; however, coordinating the witnessing, signing, and notarization of many different documents can prove overwhelming and requires skill and experience. The highly sensitive nature of estate planning documents has very serious consequences if not executed properly, especially given that remote witnessing and electronic signatures are not permitted in New York or New Jersey.20
While notarization is only a part of the execution requirements, performing this act improperly could destroy an estate plan, putting clients and attorneys at risk. Because remote online notarization is a relatively new development, the long-term impact on estate planning has yet to be determined. Estate planning professionals and their clients should be aware of the risks of remote online notarization. An execution meeting at your attorney’s office can save time and money, but, more importantly, it ensures that a loved one’s wishes will be respected and carried out upon their death.
1 N.Y. Exec. Law § 135-c; N.J.S.A. § 52:7-10 to § 52:7-19.
2 N.Y. SCPA § 1406; N.J.S.A. § 3B:3-4.
3 N.Y. EPTL § 3-2.1; N.J.S.A. § 3B:3-2.
4 N.Y. State Tech. § 307(1); N.J.S.A. § 3B:31-18; N.J.S.A. § 3B:3-2(a)(2).
5 N.Y. Pub. Health Law § 2981(2-a).
6 N.Y. Exec. Law §§ 135-(c)(1)(d), (4)(a)(ii); N.J.S.A. § 52:7-10.10(d).
7 N.Y. Exec. Law § 135-c(2)(b); N.J.S.A. § 52:7-10.10(d)(10).
8 19 N.Y.C.R.R. § 182.8; N.J.S.A. § 52:7-10.10.
9 19 N.Y.C.R.R. § 182.9; N.J.S.A. § 52:7-10.10.
10 Matter of Holmgren, 74 Misc. 3d 917 (2022).
11 Id. at 920.
15 Id. at 921.
16 Id. at 921-22.
17 Matter of Estate of Dobson, Slip Copy, 75 Misc. 3d 1228(A) (2022).
19 19 N.Y.C.R.R. § 182.3(6); N.J.S.A. § 52:7-10.17.
20 The State of New York now permits remote witnessing for health care proxies.