You may have been thinking about your estate planning for a while, but were hesitant to do something concrete about it. But now, with a viral pandemic constantly in the news, you feel it’s the right time to put your affairs in order. But isn’t everything shut down? How can you get professional guidance in light of social distancing rules? How do you make sure that your Will, Health Care Proxy, or Power of Attorney is effective?
We have quickly adapted our processes to help people safely and effectively implement a well-thought-out estate plan during the coronavirus pandemic. For example, although it may be pleasant to sit face-to-face with an attorney to discuss your estate planning goals, we can have the same type of consultations by telephone or video-conferencing technology, eliminating the risk of any disease transmission. Meetings by phone or video conference remain as confidential between attorneys and clients as if they were done in-person.
Your signature on many legal documents (Deeds, Trusts, Powers of Attorney) needs to be notarized to be legally effective. Usually, this involves meeting in-person with a Notary Public either at your home, office, a bank, or attorney’s office. However, in light of the pandemic, the Governor of New York recently issued Executive Order 202.7, which allows a Notary Public to “virtually” notarize a document, so long as the Notary witnesses the person’s signature on a live video conference, the person signing is physically situated in New York State, the person presents his or her photo ID to the Notary, and the person e-mails or faxes the original signed document to the Notary on the same day it was signed. If a fully executed original is needed, within 30 days, the original and e-notarized documents must be sent to the Notary. The notary may then notarize the original. This Executive Order is in effect through May 7, 2020, and thus allows someone who is housebound (but with access to e-mail or fax) to effectively execute important estate planning documents.
Furthermore, many of our laws require certain formalities be observed to validly sign a Last Will and Testament, Health Care Proxy, Trust, or Statutory Gift Rider. Because of the complex rules of the signing and witnessing process, a person will usually choose to have an attorney supervise the signing (execution) of the Will and other documents to make sure that these legal formalities are complied with. This is another opportunity for the use of video conference technology. Without going out to an attorney’s office, an attorney may still be able to supervise how you and your witnesses sign the Will.
One of the most stringent requirements of our Estates, Powers and Trusts Law (EPTL) section 3-2.1, is that the Testator (creator of the Will), must either sign his or her name in front of two witnesses (who are not otherwise named in the Will), who then sign their names and addresses at the end, or, alternatively, the testator must “acknowledge” his signature on the Will to the two witnesses. That normally means that we have everyone together around a table, and have both witnesses view the signing of the Will at the same time. However, to cut down on the risk of spreading coronavirus or other disease, the two witnesses could remain six feet apart from the testator and each other, or the testator could meet with the two witnesses separately (signing in front of one, and showing his signature to the second witness). An important thing to keep in mind is that the witnesses to a Will should not be named in the Will anywhere, or they risk the validity of the Will, or the receipt of their bequest under the Will. So if your spouse is named as the primary beneficiary, he or she should not be signing as a witness! However, especially during this national crisis, we can seek help from our neighbors or trusted friends and colleagues to help with the brief, but vitally important, task of witnessing our Last Will and Testament.
On April 7, 2020, the Governor of New York signed Executive Order 202.14, which is effective through May 7, 2020, and now allows for “virtual” or “remote” witnessing of important estate planning documents such as a Will. Just as with remote notarization, New York State residents are now temporarily allowed to have the two witnesses required under EPTL 3-2.1 observe the signature of the Testator by an audio-video teleconference, as long as the Testator shows them valid photo ID, and e-mails or faxes a legible copy of the signature pages to the witnesses on the same day they are signed. Therefore, as attorneys, we can now safely – and effectively – serve as witnesses to your estate planning documents by video-conference. This can further minimize the risk to anyone’s health and safety, while at the same time ensuring that what you want to see happen with your Estate is successfully implemented.
The coronavirus pandemic is an unusually stark reminder of life’s fragility, and has resulted in dramatic and immediate changes to our social and economic patterns. Nevertheless, with the use of new technology, and recent (albeit temporary) alterations to State law, we as professionals are able to overcome these obstacles and help clients implement their estate plan.