As a result of the COVID-19 pandemic, many clients are feeling a sense of urgency about implementing a new or updated will, trust, power of attorney, health proxy or other estate planning vehicle. An understandable concern is how to safely implement such a plan while still abiding by social distancing guidelines.
In both New York and Connecticut, clients may now have documents notarized electronically provided certain conditions are met. For example, in both states, the client and the notary must participate in a live video-conference, as pre-recorded interactions are not allowed. Although a will does not need to be notarized in either New York or Connecticut, it must be witnessed by two individuals who are not beneficiaries under the will. For example, in New York, EPTL section 3-2.1(a)(2) mandates that the person making the will sign it in the presence of two witnesses, while NY EPTL Section 3-2-1(a)(4) requires that the two witnesses to the will attest that the person making the will either signed the will in their presence or acknowledged in their presence that their signature appeared on the will. However, New York law does not currently define what satisfies the ‘in the presence of’ requirement.
Since will executions typically have been done with the client, the lawyer, and any witnesses physically present in the same room, there was no need to clarify the ‘in the presence’ requirement and, as such, there is little or no case law on the issue. This left open the possibility that remote will execution ceremonies could result in an invalid will for non-compliance with statutory requirements. Fortunately, in New York, this uncertainty has been resolved through an Executive Order issued on April 7,2020, which specifically authorizes, through May 7, 2020, the use of remote video conferencing to satisfy the in presence and witness requirements governing will executions in New York, as well as for the execution of a lifetime trust pursuant to New York EPTL sec. 7-1.17.
As a result of the recent New York Executive Order, there is no question that the witnesses need not be physically present in the same room as the person signing the will or trust, and the validity of the will or trust cannot be challenged simply because the execution was done remotely. As an alternative, it may be possible to have other individuals, such as neighbors, friends or co-workers, serve as witnesses to an estate planning document. However, you should select your witnesses only after consultation with your attorney. Also remember that any documents that require remote notarization must be notarized using procedures that conform to the NY Executive Order issued on March 19, 2020.
Under current Connecticut law, CGSA section 45(a)-251, a valid will must be written, subscribed by the testator, and attested to by two witnesses, each of whom must sign the will in the testator’s presence. At this time, Connecticut has not issued an Executive Order specifically authorizing the remote execution of estate planning documents though, like New York, Connecticut has authorized remote notarizations as discussed above.
In addition to clarifying that wills and trusts can be validly executed in a remote fashion, New York is now authorizing any parent, legal guardian, legal custodian or primary caretaker who works or volunteers in a health care facility, or who reasonably believes they may be in circumstances that would otherwise expose them to COVID-19, to designate a stand-by guardian. To accomplish this, the person seeking to appoint the stand-by guardian must complete a written designation making such appointment. Both the person seeking to appoint the stand-by guardian and the appointed stand-by guardian must sign the document in the presence of two witnesses who are at least eighteen years of age. However, the appointed stand-by guardian may not serve as one of the required witnesses.
If a remote will or trust signing is not possible, you may need to meet with your attorney. Here are some best practices to keep in mind:
1) Maintain appropriate personal distance (at least six (6) feet) at all times;
2) Only those who are needed at the meeting should attend;
3) Bring your own writing instrument to the meeting (do not share pens);
4) If you meet outdoors, bring a hard surface (i.e. a clipboard) to write on if a table will not be available, and;
5) Consider wearing protective masks or gloves if that makes you more comfortable.
As a result of the recent Executive Orders issued in New York, it is possible to implement or update estate planning vehicles in a safe and legally sound manner by using a remote process to execute estate planning documents.