April 16th, 2020
Signing Your Estate Planning Documents During COVID-19
Author: Michelle L. Vesole
During this COVID-19 pandemic, many individuals are more pressed than ever before to create or update their estate plans, and understandably so. However, in our current circumstances, the execution of these estate planning documents has been exceedingly problematic, primarily because state laws generally require the physical presence of two witnesses and sometimes a separate notary as well. Fortunately, in light of the challenges presented with executing the documents while abiding by social distancing mandates, many states have enacted temporary legislation permitting remote (virtual) witnesses and/or notarization for these important documents.
Beginning on April 10, 2020, Maryland temporarily suspended the in-person witnessing requirement for Wills, Financial Powers of Attorney, and Advance Medical Directives. Under this temporary legislation, the following requirements must be followed to validly witness these documents remotely:
- the signer must be a Maryland resident or physically in Maryland during the time of the signing;
- each remote witness must be a Maryland resident, physically located in the United States;
- the signer, witnesses, and a Maryland-licensed attorney (who may not serve as a witness) must be in the physical presence or “electronic presence” (i.e., ability to see and communicate with one another) of one another;
- the signer and witnesses must physically or electronically sign one or more counterparts of the same document at that time; and
- after execution, the supervising attorney must create a certified copy of each document (deemed the original document), containing the signature pages of the signer and witnesses, and prepare a certification verifying compliance with these rules.
Certain documents, such as a Financial Power of Attorney (including the Maryland Statutory Form Personal Financial Power of Attorney), also require contemporaneous notarization. Beginning on March 30, 2020, Maryland temporarily authorizes remote notarization as well. Maryland notaries must comply with several requirements to perform remote notarizations, including notification to the Office of the Secretary of State, identification of a permissible communications technology vendor, and the creation and retention of an audio-visual recording of the notarization.
The District of Columbia, beginning on April 8, 2020, temporarily authorizes the execution of Wills with remote witnessing and electronic signatures. Notably, remote witnessing is not authorized for Advance Medical Directives in D.C. However, D.C. temporarily authorizes remote notarization, which, under D.C. law, Financial Powers of Attorney require execution in the presence of a notary.
Virginia has permitted remote notarization since 2011. Virginia has not authorized any electronic or remote witnessing of estate planning documents. However, holographic wills (i.e., a will signed without witnesses) may be recognized in Virginia.
What about Trusts and Wills?
Although we consider it a best practice for Trusts and Wills to be executed in the presence of two witnesses and a separate notary, not all local laws (including Maryland) require these formalities for a Trust or Will to be valid.
While it is important that an alternative method for executing your estate planning documents is currently available, once our lives have returned to “normal,” we recommend, to the extent possible, that an updated set of documents be executed under the ordinary formalities and best practices.
For more information regarding your estate planning questions and concerns, feel free to contact a member of our estate planning department.