How Do I Sign Estate Planning Documents During the COVID-19 Pandemic?

by Thomas D. Begley, Jr., Esquire, CELA

Many clients are anxious to execute Wills, Living Wills and Powers of Attorney during the current COVID-19 pandemic.  Many law firms have, in fact, seen an upswing in their Estate Planning business.  Some clients have no documents.  Some clients merely want to update one or more documents.  The problem is in signing the documents during the current lockdown.

Requirements for Executing Documents

• Wills and Codicils.  Generally, a Will or Codicil requires the signature of the Testator and must be witnessed by two adults.  Witnesses may include the Testator’s spouse and/or adult children.  This is not always good practice.  The Testator must sign the Will or Codicil in the presence and hearing of the witnesses.  An acknowledgment by a Notary or other officer, including an attorney, is not required for the Will or Codicil to be valid, but it is required for the document to be “self-proving.”

• Revocable Living Trust.  A Revocable Living Trust can be established in New Jersey simply by executing a written instrument.  Neither witnesses nor a Notary is required.  Good practice dictates that the Settlor’s signature be notarized and/or witnessed and that the Trustee sign the Trust instrument. 

• Health Care Power of Attorney.  A Health Care Power of Attorney must be in writing, signed by the Principal, and either witnessed by two adults or acknowledged by a Notary or Attorney.

• Financial Power of Attorney.  A Power of Attorney must be in writing, signed by the Principal, and acknowledged by a Notary Public or other individual authorized to administer Oaths and Affidavits, such as an Attorney.  Witnesses are not required, but good practice includes having two witnesses sign the document.

New Jersey Legislations Promoting Remote Notarization

            For the duration of the COVID-19 pandemic, Notary Publics and Attorneys are authorized to authenticate documents remotely.  Legislation authorizes audio-video technology, such as Zoom or Smartphone, as an acceptable means of appearing before the Notary or Attorney.  Such notarization is only permitted if:

1. The Notary or Attorney has personal knowledge of the person signing the documents or has satisfactory evidence of the person’s identification (i.e., two different forms of identification such as a Driver’s License and U.S. Passport).
2. The Notary or Attorney can confirm that the document before the Notary or Attorney is the same as the document being signed.
3. An audiovisual recording of the notarial act is created.
4. The Notary or Attorney certifies in writing that the notarial act was performed remotely.
5. The recording is retained for ten years.

While this legislation is helpful, there is a lot that can go wrong and should probably only be used as a last resort.

Six Approaches for Executing Estate Planning Documents

• Clients signs at home with witnesses and a Notary.  The law firm can send a representative to the client’s home.  The client would sign the documents and provide two witnesses.  The representative from the law firm would serve as the Notary.  The clients, witnesses and Notary would all wear masks and gloves.  The documents would be sent to the client in advance for review.  The law firm would telephone the client in advance and review the documents with the client.  Social distancing would be maintained.  Each individual would have his or her own pen.

• Notary and/or witness through glass window.  This process would be similar to client signing at home, except the witnesses and/or Notary would not actually enter the client’s home and would remain outside.  The witnesses and/or Notary would observe the signing through the window.  The documents would be mailed in advance and retrieved by the client leaving the documents outside the home for the law firm representative to pick up. Communication with the client could be via cell phone.

• Client uses neighbors as witnesses.  If there is only a Will or Codicil and/or Health Care Power of Attorney being signed, the client may simply arrange for two neighbors to sign as witnesses.  There would be no acknowledgment by a Notary or Attorney.  The Will or Codicil would be valid, but not self-proving.  

• Drive-by signing.  The signing would be similar to the client signing at home, except the client would drive to the Attorney’s office or other pre-designated location and the document could be signed on the hood of a car or passed to or from the client through an open car window.  

• Holographic Pour Over Will with Revocable Trust.  Holographic Wills are valid in New Jersey.  A lawyer could send the client a simple Holographic Will for the client to write in his or her own hand, simply pouring everything over to a Revocable Living Trust, which would contain all of the dispositive provisions.  This is probably not the best strategy, but could work.

• Remote notarization.  Documents could be prepared by the law firm and sent to the client in advance.  The client would arrange for witnesses, and the notarization would take place by a representative of the law firm as outlined under the Remote Notarization procedures set forth above.