The COVID-19 crisis, and its attendant rules of social distancing, face masks, etc. have presented new challenges to estate planning attorneys in the realm of document executions. How are we advising clients who wish to sign their estate planning documents during this pandemic? The usual participants when we meet with clients to execute wills and other documents include the client(s), the attorney who serves as one witness, a staff member who serves as the second witness, and a notary public. Like many other law firms in New Jersey, we have not been meeting with clients in our offices since mid-March. Many of our attorneys, and most of our staff, are working remotely. Hence we cannot easily assemble the normal cast of characters to participate in the execution of client documents. Further, wills and other estate planning documents may not be signed by electronic signature; such documents must be signed in person with a so-called “wet” signature.
Here are some of the ways we have been helping our clients sign their documents in these challenging times.
1. The signing may be handled by the client at home or elsewhere, with execution instructions provided by the attorney:
For the will, two witnesses are required, both of whom must be 18 or older and may be “interested” witnesses—family members, beneficiaries or fiduciaries named in the will. (Note that interested witnesses are allowed in New Jersey but not in New York and certain other states.) Notarization is not required. The will won’t be self-proving, but a witness proof can be used if ever needed.
For the power of attorney, all that is needed is a notary.
For the advance directive and HIPAA authorization, either two witnesses (neither of whom may be a health care representative named in the document) or a notary is necessary.
If this is the route elected, we recommend that when normal business operations resume, the documents be re-executed using the more formal process below.
2. The alternative, more formal method, is the “parking lot” or “backyard” execution (i.e., the attorney and the client meet outdoors, observing social distancing and wearing masks and gloves).
For the will, power of attorney, advance directive for health care and HIPAA authorization, two witnesses, both of whom must be 18 or older and should not be family members, and a notary (or attorney) are gathered together. The attorney presides, and all documents are signed by the client, two witnesses, and the notary (or attorney, who has the same powers as a notary).
3. If a client is alone and isolated, with no one to serve as witnesses, a “holographic” will may be written and signed by the client. Note that the “material portions” of the will must be in the testator’s own handwriting and the will must be dated and signed by the testator. N.J.S. 3B:3-2(b). Nevertheless, we do not usually advise this approach because of the possibility that important provisions of the will could be omitted.
4. A will may be signed by the client only, with no witnesses, and could be probated as a “writing intended as a will” under N.J.S. 3B:3-3. The standard of proof required is “clear and convincing evidence.” This method requires filing in Superior Court and is certainly not as streamlined a process a filing the will with the County Surrogate. However, if no other option exists, this could be attempted.
5. Regarding documents that require notarization, Governor Murphy signed an emergency remote notarization law, A-3903, on April 14, 2020. P.L. 2020, c.26. The law allows a notary to observe a document being signed via Zoom conference or other audio-visual technology, and then to complete the acknowledgement, recording both signings and keeping the recording for a period of ten years. Note that this law is designed to be effective only during the COVID-19 pandemic.
We do not advise the use of remote notarization other than in emergent situations. Most estate planning documents, excepting only powers of attorney, do not require a notary, and notarization alone will not make a will valid.
To recap, using one of the methods outlined above it is possible to sign estate planning documents even if an in-person meeting in your attorney’s office is not advisable, whether because of a global pandemic or any other reason.