By Ryan Broedlin, Esq.
There can be no doubt that the COVID-19 pandemic has created a great deal of uncertainty at this time in our lives. In light of this uncertainty as well as the pandemic’s economic impacts, it is likely that many people are considering their long term financial and estate planning. The need to respect social distancing requirements, however, can make updating estate planning documents and completing certain financial transactions tricky tasks at this time due to requirements that such documents be notarized and/or witnessed.
For example, proper execution of a Last Will and Testament often requires that the testator (the person signing the Will) sign the document in front of two witnesses who must also sign the document. Additionally, if you want to make the Will “self-proving” – meaning the witnesses do not need to appear before a court to have the terms of the Will carried out – a notary is required. Under normal circumstances, these requirements typically result in all of these people – the testator, the witnesses, and the notary – coming together in one place to complete the execution of a Will. Indeed, most states specifically require that the witnesses and the notary be physically present when the document in question is signed. Additionally, it is not uncommon for real estate transactions, life insurance forms, and retirement account forms to require notarized signatures.
It is not difficult to see why this presents a problem in times of social distancing. Not only would execution of estate planning documents in the manner described run afoul of social distancing requirements, it would also unnecessarily put multiple people at risk of infection. This issue is only exacerbated when you take into account the fact that those most likely to have a pressing need for updating their estate planning – senior citizens – are also the most at-risk population right now.
Thankfully, states are starting to recognize these issues and are reacting with common sense solutions to address them. In New York, for example, Governor Cuomo has issued two separate executive orders to help remove some of the roadblocks to signing estate planning or other financial documents at this time. The first allows a licensed notary to notarize documents remotely, using audio-video technology. The second, issued just a few days ago, allows the same accommodation for witnesses of, among other things, a Last Will and Testament, Powers of Attorney, Trusts, Healthcare Proxies, and Real Property Instruments.
There are, of course, certain requirements that must be fulfilled to utilize remote methods of notarizing and witnessing documents. First and foremost, the New York orders only apply to documents that are actually executed in the state of New York. As such, out-of-staters cannot take advantage of New York’s relaxing of the formalities of document execution. Second, remote notarization processes must use audio-video technology that can record the document execution and that recording must be saved. Third, there are specific rules about the timing and means of execution of the documents by the witnesses and notary, including that they must at least sign faxed or emailed copies of the document on the same day it is signed by the individual in question.
Much like New York, Pennsylvania has addressed this issue, at least in part, by allowing for remote notarization of documents. The process differs somewhat from New York in that it requires already-licensed notaries to become approved electronic notaries. Furthermore, Pennsylvania limits the technology platforms that can be used to a short list specifically approved by the Department of State. Finally, Pennsylvania has not addressed the witness issue at this time.
New Jersey is also at least considering this problem but has been slow to act thus far. A law allowing for remote notarization is working its way through the New Jersey legislature but: (i) it has not been signed into law by Governor Murphy; and (ii) it specifically exempts Wills and related documents from the list of documents that can be notarized remotely. We are continuing to monitor progress of this legislation and will provide updates when appropriate.
Overall, these procedural updates by New York and Pennsylvania represent a very welcome change in light of the challenges we currently face in, among other things, keeping transactions and business moving. Allowing remote notarization and/or witnessing should allow those with urgent situations – or those that now find themselves with some extra time on their hands – to find a safe and secure way to get necessary legal and financial documents executed properly. We have quickly adapted to these new rules and have the people and technology in place to help our clients do so. If you would like to talk to us about taking advantage of these new rules to update your estate planning, please reach out to us today to schedule a free consultation at 908.204.3477.
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