An Estate Planning Update in the Time of the Coronavirus
In March of this year, I wrote a column entitled “Estate Planning in a Time of Crisis”, which outlined possible options for having your estate planning documents witnessed and notarized during the Coronavirus crisis. There have been some important developments since that time that merit this update.
In my column in March, I noted how remote notarization was authorized by Governor Cuomo in his Executive Order 202.7. This capability has been extraordinarily important, given the fact that access to Notary Public services has been severely restricted since the outbreak of the Coronavirus.
Typically, people could get a Notary to notarize their signature at their attorney’s office, their local bank, or potentially at a local city or town hall. When the Coronavirus hit, attorneys’ offices were closed, and banks and municipal offices limited their personal contact with customers and residents.
The remote notarization authority allowed by Executive Order 202.7 has been a welcome tool for legal practitioners to continue to notarize documents for clients. Documents needing notarization include Powers of Attorney, Deeds, Affidavits, and various important legal agreements.
Remote Notarization – More than just notarization by video conference
It is important to note that remote notarization is not as simple as having the Notary watch you sign a notarized document via video conference with FaceTime, Zoom, or Skype. Executive Order 202.7 has specific additional procedures, including the necessity that the full notarized document be faxed or electronically transmitted to the Notary after the Notary watches the individual sign the document via video conference. That transmission must occur the same day as the signing.
After the Notary receives the transmitted document, they may notarize that copy and transmit it back to the signer. The signer then, in turn, may mail the original and the copy back to the Notary within thirty days. When the Notary receives the original and the copy in the mail, they can then notarize the original.
There are additional procedures involved, but it useful to understand the basic flow of the documents back and forth between the signer and the Notary. To the extent that this document exchange and additional procedures are not followed properly, the notarization could be subject to legal challenge. As a result, you should make sure the provider of remote notarization services is familiar with the specific requirements of Executive Order 202.7
Remote Witnessing – an Important New Development
After Executive Order 202.7 was signed in March allowing remote notarization, Governor Cuomo later
signed Executive Order 202.14 in April. Executive Order 202.14 allows for remote witnessing of certain legal documents, including Wills and Health Care Proxies. This is an important new development, which means that the basic documents for an individual’s estate plan (Will, Health Care Proxy, and Power of Attorney), can now all be witnessed and notarized remotely.
In my column in March, I noted that remote supervision of Will and Health Care Proxy execution could be possible if the signer of those documents had two appropriate witnesses present with them. In practice, some people found it very difficult to secure two appropriate people to serve as witnesses because of quarantine and social distancing issues.
By virtue of the authority granted in Executive Order 202.14, the two witnesses to a Will or Health Care Proxy signing need not be in the same location as the signer. The requirements for remote witnessing are similar to the requirements for remote notarization, but not exactly the same.
The Executive Order for remote notarization states that the signer “must” transmit the signed document to the Notary by fax or electronic means the same day it is signed. The Executive Order for remote witnessing states that the signer “may” transmit the signature pages of the document to the witnesses by fax or electronic means the same day they were signed. It has been said that this distinction was deliberate and would allow a signer of a Will or Health Care Proxy to make a copy of the signature pages and physically deliver them to the witnesses (potentially to a drop box, for example), thereby alleviating the need of the signer to have access to email or a fax machine.
Due to extensions of the original authority granted by the Governor, both remote notarization and remote witnessing are still available in New York. Presumably, the authority will eventually expire, so anyone attempting to use either procedure should check to make sure it is still legally permissible.
Now that law offices are starting to open up in our area as part of the Phase 2, the need for remote notarization and remote witnessing will presumably decrease. There may still be a need for these procedures for our more vulnerable communities, such as elderly persons in quarantine or nursing home residents subject to visitor limitations. If you are in need of such services, you should contact an experienced estate planning attorney in your area to ensure all necessary legal procedures are followed.
Matthew J. Dorsey, Esq. is a Partner with O’Connell and Aronowitz, 1 Court Street, Saratoga Springs, NY. Over his twenty-three years of practice, he has focused in the areas of elder law, estate planning, and estate administration. Mr. Dorsey can be reached at (518)584-5205, firstname.lastname@example.org, and www.oalaw.com.
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