The COVID-19 pandemic has prompted an increasing number of people to think about estate planning, and many are reaching out to attorneys to prepare and execute the documents that spell out their final wishes. These documents need to be signed, witnessed and notarized, tasks that often cannot be completed in person with so many of us staying home or maintaining social distancing to prevent the spread of the coronavirus.
When Governor Andrew M. Cuomo issued Executive Order 202.7 in March allowing trusts and estates matters to be executed via videoconference — and in April extended the order through May 7 with Executive Order 202.14 — lawyers found that they quickly had to master new processes and new technology.
With this technology came a host of questions about how to properly handle signings remotely that previously required a lawyer, client and two witnesses to be at the same table.
Estate planners showed how to effectively execute a will during NYSBA’s recent CLE webinar “Remote Execution of Estate Planning Documents,” which was attended by more than 600 participants.
Executive Order Spells Out Basic Guidelines
”The problem we are having while we are in this pandemic, while we are self-isolated, while we may be in the hospital and not able to see anyone, how are we able to execute wills if we can’t be in the presence of witnesses?” said Jeffrey A. Asher (Law Offices of Jeffrey A. Asher). “That’s the issue that we are dealing with now and that’s the issue that the executive orders are intended to resolve.”
He explained that by removing the requirements that witnesses have to be in the presence of the testator, then “we have a path forward to execute wills and other documents as long as we follow the rules of the executive orders.”
Nicole Clouthier (Cioffi Slezak Wildgrube) explained that remote witnessing must be done via interactive video conference. “It cannot be pre-recorded. You need to be able to speak back and forth with the person who is signing,” she said.
As detailed in the executive order, clients must know the witnesses. If they do not, the witnesses must present valid ID, which must be shown during the videoconference. “They must hold up their drivers’ license and show you the ID at some point during the videoconference,” Clouthier says her firm uses screenshots to handle this part of the process.
Attorneys Should Develop Their Own Best Practices
Asher recommended that attorneys develop their own best practices for their offices, with the understanding that there may be a time when these documents will be probated.
“Besides developing your own best practices, consistency is your best friend,” said Asher. “If you interpret it one way and do it that way, say ‘this is what I’ve done for every will that I have recorded under 202.14.'”
Under the executive order, witnesses may sign the transmitted copies of the signature pages but it is not a requirement. Asher said, “Don’t get cute. Don’t look at the language as ‘may’ and say ‘well I don’t have to.’ Do it. You don’t want to be the person who has to defend an unsigned, unwitnessed, unnotarized document and when the question is ‘why isn’t this witnessed or signed’ and you say well I didn’t have to, it said may so I didn’t do it. Do it.”
Conducting Secure and Effective Videoconferences
“This is 50 percent legal and 50 percent logical. Make sure you prepare your client beforehand to ensure that they are ready,” said Michael Dezik (Wilcenski & Pleat).
First step: make sure that the attorney and client are using the same videoconferencing platform.
If using Zoom, Dezik suggested upgrading from the basic level to ensure that you are not restricted to a time limit. He noted that Zoom crosses multiple platforms, such as Android, Apple and desktop, and is easily accessible. Apple’s Facetime only works on Apple products.
“The upgrade enables you to have a waiting room,” he said, adding that the waiting room lets him know who the participants are and he doesn’t have to admit anyone that he doesn’t recognize.
Dezik recommends having a good set of headphones to ensure privacy from anyone hearing confidential information. He also uses random meeting codes, rather than his personal meeting ID, to minimize the risk of security breaches. WiFi can present technical disruption risks so he uses a hard-wired connection to ensure continuity.
Signing the Documents
On the videoconference, the lawyer will serve as the host and use the waiting room to ensure that the witnesses are ready and can verbally commit to serving as witnesses. The lawyer will go over the will, confirm with the client, and then give detailed instructions on where to sign.
Upon signing, the client can transmit the signature pages directly to the witnesses or to the lawyer, who can in turn send them to the witnesses. Dezik said there are a number of apps that lawyers can use for this task. He uses ScannerPro to transmit; it can convert a smartphone photo into a PDF for transmission.
“What we see often times in will contests is the publication requirement,” noted Deborah Kearns, chief clerk of Albany County Surrogates’s Court. “Make sure that the testator publishes and says ‘this is my will.’ I can see a lot of different moving parts in this.”
Angelo M. Grasso (Greenfield Stein & Senior) advised against recording the videoconferencing of wills. “I would be judicious about recording these by video or audio,” he said.
“The videos will often do more harm than good. It may give rise to an undue influence objection,” added Grasso. He cautioned that audio recordings are worse, because they contain “disembodied voices without any context.”
Executive orders currently allow remote notarization of documents through May 7, although that date could be extended.
The day before the videoconference:
- Confirm your client and witnesses have internet connection and have downloaded the agreed-upon videoconferencing service.
- Email client and witnesses a secure link to your meeting with security details
- Email client the copy of the will and go over any last-minute changes
- Confirm that client can transmit a copy of the signature page to the witnesses or the lawyer who will send them to the witnesses
The day of the videoconference:
- Confirm that the client has the printed final version of the estate plan.
- Begin the videoconference and admit participants as need.
- Confirm that the client is ready to sign and that the pages of the printed will are in order.
- Confirm client has valid identification