Estate Planning While Staying Home During COVID-19:
Sign Your Documents Using Remote Witnesses and Remote Notary
As a Maryland estates and trusts law firm, we help existing and new clients put into place important estate planning documents. During the COVID-19 state of emergency, estate planning can be accomplished without the necessity of leaving your home. The ability for you to implement a complete estate plan while staying at home is permitted under Maryland law pursuant to several executive Orders for the duration of the COVID-19 health emergency.
Since early March, our firm changed in-office meetings to “virtual” meetings by telephone conferences. Also, we retooled some of our estate planning documents to minimize the health risk associated with person-to-person transmittal of the disease. See here for a full description of our modified procedures.
The witnessing and notarization requirements for some estate planning documents, however, made the execution of certain documents problematic under COVID -19 conditions. Two important, recently enacted, executive Orders permit remote witnessing and notarization of estate planning documents.
Equipped with these Orders, we now provide full estate planning services to clients remotely – without the necessity of those clients leaving their homes provided they have access to audio-visual conferencing on a smart phone, tablet, or home computer. For other clients without this technology, we still offer effective “work-arounds” to implement core estate planning while still enabling those clients to stay at home for the whole process without exposure to witnesses or a notary. See here for a general description of these estate planning techniques.
COVID-19 Emergency Procedure Permits “Virtual” Document Execution
Two separate emergency Orders issued by Maryland Governor Hogan permit estate planning documents to be remotely executed. This means that the client can sign documents in his/her home while the witnesses and notary are not physically present but watching by video link. The estate planning lawyers of Franke Beckett LLC have been conducting “virtual” client meetings – including remote signing of documents – during the COVID-19 pandemic.
For a virtual signing to take place, a client needs a video link on a tablet, computer or cell phone. The estate planning lawyer sends the client a link to the video conference, provide the witnesses and, if required, a notary. We prepare documents that comply with “best practices” for remote execution. Under the coronavirus executive Order for remote witnesses, a “supervising attorney” must take reasonable steps to verify that the legal requirements of the Order are followed. We follow a procedure designed to preserve the integrity of the estate planning documents remotely executed by our clients.
The Order authorizing a remote notary similarly requires specifics steps be followed, including making and retaining an audio-visual recording of the procedure. We follow a procedure that meets the criteria under both Orders.
“Normal” Requirements Before the Coronavirus, COVID-19 Epidemic
Before these two important Orders, most estate planning documents required witnesses, a notary, or both. Under Maryland law, a durable power of attorney requires 2 witnesses and a notary. Wills require 2 individuals physically present when they sign the Will as witnesses.
Although revocable trusts generally do not have strict witnessing and notarization requirements, a deed transferring real estate into the trust usually require a notarization of the settlor’s signature on the deed. [“Usually” because since the outbreak of the coronavirus, we have used a “declaration of trust” as a Will substitute to circumvent the rule requiring deeds to be notarized. This technique requires neither witnesses or notarization (only a sufficient description of the property to satisfy the statute of frauds) and is well suited for clients without access to video conferencing. This is discussed in more depth here.]
Generally, health care directives require 2 witnesses, much like a Will. For clients self-quarantining and without video capabilities, there is an alternative method to create an effective health care directive that does not require witnesses, discussed here.
Technical Requirements of Remote Witnessing
A Will, durable power of attorney and a health care directive may be remotely witnessed under the Governor’s emergency Order number 20-04-10-01 (the “Remote Witnessing Order”).
To comply with Maryland law, however, the required witnesses must be in the “electronic presence” of the person signing the document. This requires video conferencing to permit all the various individuals to observe and communicate with each other to the same extent as if physically present in the same location.
Under the Remote Witnessing Order, a “supervising attorney” must oversee the remote witnessing and take reasonable steps to assure that the witnessing follows the proscribed rules. The supervising attorney, however, cannot be one of the witnesses.
At the end of the process the supervising attorney assembles the signed estate planning document and the signed conformed copies of the original signed by the witnesses. That package becomes the completed, fully executed estate planning document.
The Remote Witnessing Order also permits the person signing to use an electronic signature, much like real estate and other contracts are commonly “signed” under prevailing commercial practice. The Maryland statute permitting electronic signatures to contracts, however, specifically excludes its use for estate planning documents. As estates and trusts litigators, the lawyers of Franke Beckett LLC would not advise using an electronic signature permitted by the emergency Remote Witnessing Order unless no other option is workable. An electronic signature introduces an additional proof issue as to whether it was, in fact, signed as claimed. Unlike contracts, estate planning documents are unilateral which means they lack a process of negotiation that can supply an element of verification. The content of most estate planning documents need not be discussed with anyone.
Technical Requirements for a Remote Notary
An individual need not be in the physical presence of a notary public if rules are followed as set out by the Maryland Governor’s emergency Order Number 20-03-30-04 (the “Remote Notary Order”).
Like the Remote Witnessing Order, a remote notary must use “communication technology” permitting real-time communication among the various participants. The notary must confirm that the document being notarized is the same as the document being signed. The remote notarization is recorded, and the audio-visual record preserved for 10 years. These rules are part of a process designed to reduce trickery or fraud. Like the presence of a supervising attorney, it is meant to create a likelihood that the documents being signed are free from fraud, duress and/or undue influence. This is discussed in more depth here.
Planning Under the Emergency Orders
Both executive Orders are creatures of the COVID-19 epidemic. Both remain effective until the state of emergency and the proclamation of the catastrophic health emergency has been rescinded. If signed properly while these Orders are in effect, the documents are valid after the heath emergency is over. The approach adopted by both Orders, to varying degrees, reflect what will be, or may become, Maryland law in the future.
The Remote Notary Order parallels a change to the notary law already meant to become law effective October 1, 2020. The new remote notary statute, however, specifically excludes the notarization with respect to Wills and Trusts. There is a detailed discussion of the Remote Notary Statute passed in 2018 and scheduled to become law 10/1/20 here.
The provisions of the Remote Witnessing Order are similar to those of the Uniform Electronic Wills Act (the “E-Will Act”), discussed here. The E-Will Act, however, does not provide for a supervising attorney to monitor the process. The E-Wills Act could be improved by making a verification by a supervising attorney, like that in Governor Hogan’s Order, operate to be the equivalent an attestation clause in a traditionally Will to establish presumptive validity. The Remote Witnessing Order might be considered a test-drive of the E-Will Act which undoubtedly will be debated by the Maryland State Bar Association and the General Assembly.
Our Maryland Estate and Trust Law Firm Can Help You Plan During This Difficult Time
Creating effective estate planning for clients during the coronavirus can be accomplished regardless of the degree of social distancing that a client is practicing. As with all estate planning, these new challenges call for the creation of a plan fitting the client’s needs and, given the current environment, require thinking outside of the box.
The Maryland estates and trusts lawyers at Franke, Session, and Beckett, LLC have limited our physical office hours during the acute phase of this national health emergency. We are, however, working remotely and we remain committed and able to serve our existing and new clients with necessary estate planning services. Please go to our website Home Page, here, for a description of our law firm and for the contact link. You may also call 410-263-4876 to get in touch with our office.