Given that we are still dealing with the impact of the Covid-19 Delta variant, people can differ as to whether we are truly “post-pandemic” at this time. Hopefully, however, we are past the worst of the Covid-19 pandemic and can look to forging a path forward.
Before determining that path, it would be advisable to reflect on how the pandemic changed the world of estate planning since the early months of 2020.
Remote Notarization Authorized by Executive Order
On March 19, 2020, the Governor signed Executive Order 202.7 allowing remote notarization. This authority permitted a Notary Public to notarize the signature of someone who they saw sign a document via video conference. The Governor allowed for this authority so that important documents like deeds or powers of attorney could be notarized without the need for the Notary Public to be physically present with the signer. At the time, due to lockdowns, quarantines, and other restrictions, it was increasingly difficult to access the services of a Notary Public.
Remote Witnessing Authorized by Executive Order
On April 7, 2020, the Governor signed Executive Order 202.14 allowing remote witnessing. This authority permitted remote witnessing of certain legal documents, including wills and health care proxies. The authority for remote notarization and remote witnessing allowed basic documents for an individual’s estate plan (will, health care proxy, and power of attorney) to be executed without the witnesses and a Notary Public being present with the signer.
On June 24, 2021, the New York State of Emergency expired, and the authority for remote notarization and remote witnessing ended. This is important, because any document utilizing those techniques from June 25, 2021 forward would not be properly notarized and/or witnessed.
The Future of Remote Notarization & Remote Witnessing
Undoubtedly, remote notarization and remote witnessing were important tools during the worst days of the pandemic. In their absence, it would have been more difficult, or even impossible, to get important documents signed by clients. Whether remote notarization and remote witnessing might be made legal in the future in New York is uncertain at this time.
I currently have the honor of serving as the President of the Estate Planning Council of Northeastern New York. Last year, our group hosted a panel with three local Surrogate Court Judges, who gave us their view from the bench regarding a variety of legal topics. In response to a question about the judges’ opinions regarding remote notarization and remote witnessing, all the judges agreed it was a positive development. Given that these processes have been viewed favorably by respected members of our judiciary, we may see an effort to make them a permanent part of New York law.
Other Options Beyond Remote Notarization and Witnessing
Currently, there is no real alternative to remote notarization; however, a version of remote witnessing is available. Remote witnessing pursuant to Executive Order 202.14 allowed the witnesses to be in a physical location different than the signer. As long as the witnesses could see what the signer was doing via video conference, remote witnessing was possible.
One potential alternative is to have an attorney supervise the signing of an important document, like a will, via video conference, with the two witnesses present with the signer. This is not “remote witnessing” per se, because the witnesses are present with the signer – although the attorney is not. This is a potential alternative to remote witnessing when it would be difficult for .te signer to come to a lawyer’s office and could be considered “remote supervision.”
The conventional process for signing a will, i.e. coming to a lawyer’s office and signing before the lawyer and two witnesses, will continue to be the most common practice. It has the advantage of not being susceptible to any technical snafus that might occur with the use of video conferencing technologies.
A New Awareness of the Importance of Estate Planning
Beyond the issues of remote notarization, remote witnessing, and remote supervision, the Covid-19 pandemic has definitely made people more aware of the need to “get their affairs in order.” Given the dangers presented by Covid-19, it is certainly wise to consider taking action on an estate plan.
The Path Forward for Estate Planning
If you have not engaged in proper estate planning, the path forward entails the following simple steps. First, put together a list of your assets and liabilities. Second, put together a list of your family, friends, or organizations that you wish to leave your assets to. Third, consider who you may want to appoint as an agent during your lifetime or after your passing. These agents are the trusted people who can potentially act as your executor, trustee, power of attorney agent, and health care proxy agent. Fourth, give appropriate thought to what assets you would like to give to what persons or organizations.
Armed with this basic information, you can have a discussion with the appropriate professionals regarding a proper estate plan. In the absence of taking these steps, you risk your assets not being left to the people and organizations of your choice. You also risk having your financial and medical decisions made by someone other than who you would have chosen. As with many things in life, the most difficult thing is simply starting the process. With the four steps listed above, you will be on your way.