A Socially Distanced Ceremony: Virtual Execution of Estate Planning Documents
Remote witnessing and notarization is quickly becoming the new normal for executing estate planning documents. Instead of an in-person meeting, a witness or notary who is outside the physical presence of the signatory uses two-way audio-video communication technology to witness or notarize an act. As of June 2020, at least 44 US states have allowed some form of remote witnessing and/or notarization, either permanently by statute or temporarily by governor’s order.
Just as states have different execution requirements for wills, trusts, powers of attorney and advance healthcare directives (or healthcare powers of attorney), the requirements for remote execution of those documents during the Coronavirus (COVID-19) pandemic vary significantly across jurisdictions. For example, while some states have allowed for remote witnessing, others have temporarily suspended witness requirements for all documents other than wills. Some states require notaries to be specially registered as an “online notary” or require the use of specific software for the videoconference to be recorded. A sample of the execution requirements for Illinois, Florida and New York are discussed below, followed by a brief overview of the status of remote executions in England and offshore jurisdictions.
On March 26, 2020, Illinois Governor J. B. Pritzker issued Executive Order 2020-14, which was amended and re-issued by Executive Order 2020-33 on April 30, 2020, and again re-issued by Executive Order 2020-39 on May 29, 2020. These orders allow for remote witnessing and notarization procedures. On June 12, 2020, Governor Pritzker signed SB 2135 into law, providing statutory authorization for virtual executions.
Under the new law, the requirement that a person “appear before” an Illinois notary public under the Illinois Notary Act is satisfied if the notary public performs a remote notarization via two-way audio-video communication technology. The notary public is required to be physically within the State of Illinois while performing the notarial act.
Any act of witnessing required by Illinois law also may be completed by two-way audio-video communication technology, following specific procedures as described in the statute.
Will: Illinois law requires a will to be signed by the testator (or by some person in her presence and by her direction) in the presence of two credible witnesses. A notary is not required.
Revocable Trust: In Illinois, a revocable trust does not need to be witnessed or notarized to be effective.
Healthcare Power of Attorney: Illinois law requires a healthcare power of attorney to be signed before one witness. The witness is subject to certain qualifications.
Property Power of Attorney: Illinois law requires a property power of attorney to be signed before at least one witness and acknowledged before a notary public. The witness is subject to certain qualifications.
Non-testamentary documents (e.g., powers of attorney) may be witnessed and notarized electronically under Florida’s new Remote Online Notarization law that became effective on January 1, 2020. Not all Florida notaries are able to perform a valid remote online notarization. In order to become a remote online notary, a Florida notary public must complete special registration and training requirements.
For testamentary documents, effective July 1, 2020, Florida allows a will to be executed electronically, provided that the testator and the witnesses are supervised by a notary public authorized to perform remote online notarizations and the ceremony is authenticated as a part of an online notarization session as provided under Florida’s Remote Online Notarization law. There are extra steps to verify the signatory’s identity and location, and certain qualifying statements to ensure the remote execution can proceed. For example, if the testator has any physical or mental condition or long-term disability that impairs his ability to perform the normal activities of daily living or requires assistance with daily care, then his signature may only be validly witnessed in person.
Will: Florida law requires a will to be signed by the testator (or by some person in her presence and by her direction) in the presence of two witnesses. A notary public is not required for the will to be valid, but is required if the will is to be made “self-proving.” A self-proving affidavit eliminates the need to find the witnesses to have them testify in court about the execution of the will when it is submitted to probate after the testator’s death—which may be many years after the will was executed. In a self-proving affidavit, each witness swears before a notary public as to the facts needed to probate the will. Since the self-proving affidavit may be signed at any time, including after the testator’s death, a notary public is not required for the execution of a will, but is nonetheless advisable—otherwise, there is a risk of not being able to find the witnesses when they are needed.
Revocable Trust: In Florida, a revocable trust executed by a Florida domiciliary that contains testamentary provisions is required to be executed with the same formalities required for a will.
Designation of Healthcare Surrogate: Florida law requires a designation of healthcare surrogate to be signed before two witnesses, who are subject to certain qualifications.
Declaration of Preneed Guardian: Florida law allows a person to name a preneed guardian by making a written declaration that names such guardian to serve in the event of that person’s incapacity. This declaration must be signed before at least two witnesses.
Property Power of Attorney: Florida law requires a durable property power of attorney to be signed before at least two witness and acknowledged before a notary public. A durable power of attorney with estate planning “superpowers” (e.g., creating an inter vivos trust) can be executed remotely as of July 1, 2020.
New York’s solution to the witnessing of estate planning documents and remote notarization came in the form of Executive Order 202.7 and Executive Order 202.14.
Governor Andrew Cuomo signed Executive Order 202.7 on March 19, 2020, authorizing audio-video notarization provided certain conditions are met. While the notary public is not required to be in the signatory’s presence, all other requirements of notarization must be met. For example, the notary must write the expiration date of his license and the county in which he is commissioned on the document.
Governor Andrew Cuomo signed Executive Order 202.14 on April 7, 2020, authorizing audio-video witnessing for wills, lifetime trusts, the statutory gift rider to a power of attorney, and healthcare proxies.
These executive orders are valid for 30 days each but have been extended several times, usually just before the prior executive order expired. Executive Order 202.38 extended Executive Orders 202.7 and 202.14 through July 6, 2020, and they likely will be extended again.
Will: Pursuant to statute, in order to execute a will in the State of New York, the will must be signed by the testator (or by another person in her presence at her direction). The testator may either sign in the presence of, or acknowledge her signature to each of, two attesting witnesses. There is no need for a notary public unless a self-proving affidavit is being executed.
Lifetime Trust Agreement: Execution of lifetime trust agreements (whether revocable or irrevocable) in New York is also governed by statute. Each trust agreement must be signed by the settlor and at least one trustee (unless the settlor is the sole trustee) before at least two witnesses who sign the trust agreement, or acknowledged before a notary public. The revocation or amendment of a lifetime trust must be signed by the person or persons authorized to revoke or amend the trust before at least two witnesses who sign the revocation or amendment, or acknowledged before a notary public, unless the governing instrument provides otherwise.
Power of Attorney: A New York power of attorney must be signed and dated by the principal and agent and must be notarized, but there is no requirement that the principal and agent both sign within a specified period of time, or even that the principal be competent when the agent signs. To permit the agent to make gifts of greater than a de minimis amount, the principal must execute a statutory rider that must be notarized and witnessed by two witnesses.
Health Care Proxy: A health care proxy must be signed and dated in the presence of two witnesses who must also sign.
ENGLAND & OFFSHORE
Unlike many US states, England has not passed any emergency legislation providing for witnessing of documents via audio-visual technology. Although the Law Commission has recommended that video witnessing for deeds be considered further, currently a witness must be physically present when a document is signed in order for it to be validly witnessed.
A limited exception applies in respect of wills executed by certain people. The formal requirements for an English will are set out in section 9 of the Wills Act 1837. This section provides that a will must be in writing and signed in the presence of two witnesses. The witnesses are also required to attest and sign the will or acknowledge their signatures in the presence of the testator. However, section 1 of the Wills Act 1963 provides that a will shall be treated as properly executed where its execution conformed with the internal law (a) of the place where the will was executed; (b) where, at the time the will was executed or when the testator died, the testator was domiciled or had his habitual residence; or (c) in force in a state of which the testator was a national either when the will was executed or at the date of the testator’s death.
For example, if the testator is a national of a state other than England, and that state allows witnessing of wills by video or holographic wills, the testator would not need to comply with the formal witnessing requirements under section 9 of the Wills Act 1837 to have a valid will under English law.
Unless a person falls within one of these exceptions, a will must be witnessed in accordance with the formal requirements, requiring two present witnesses. Witnesses must not include anyone who is a beneficiary of the will or the testator’s spouse or civil partner. In the current environment, the best option is to have two members of another household witness the signing of a will while observing social distancing.
The vast majority of offshore jurisdictions have also maintained the status quo, requiring witnesses to be physically present. Jersey has temporarily relaxed its witnessing requirements, passing emergency legislation that allows for remote witnessing of wills until 30 September 2020 (unless extended).
Georgia Angus contributed to this article.