How can I sign my Estate Planning documents?
New York is currently at the center of the Covid-19 pandemic. This has forced state agencies, including courts and law offices, to make certain adjustments to their normal procedures. As you probably know, Governor Andrew Cuomo has issued a series of executive orders closing certain businesses and modifying how others need to function during this emergency.
Remote Notarization of Documents
In a March 19, 2020 order, Gov. Cuomo declared that “[a]ny notarial act that is required under New York State law is authorized to be performed utilizing audio-video technology” under certain conditions. Normally, a notary must witness a person’s signature on a legal document in-person. But the governor’s order permits the notary to witness the signature via a live video conference. This means that:
- it must be a live, two-way video conference–the notary cannot witness a pre-recorded video of someone signing a document;
- if the notary does not personally know the person signing the document, that person must display a valid photo ID during the video conference;
- the person signing the document must attest to the notary that he or she is “physically situated in the State of New York,” i.e., a New York notary cannot witness an out-of-state signature;
- after the document is signed, the person must send a copy by fax or electronic means (i.e., e-mail) to the notary that same day;
- after notarizing this copy, the notary should “transmit the same back to the person”; and
- the notary may repeat the notarization on the original document within 30 days.
Notarization vs. Witnessing
So what types of estate planning documents need to be notarized? The two most common are financial Powers of Attorney and Living Trusts. A Power of Attorney allows you to name an agent to manage your property while you are still alive, but potentially incapacitated or otherwise unable to act yourself for some reason, such as you are unable to return to New York. A Living Trust enables you to manage and pass on your property without the need for formal probate. Both documents commonly require notarization.
But what about a Health Care Proxy or Last Will and Testament–two documents that may sadly be necessary for many people during this pandemic? Prior to an April 7th Executive Order, these documents had to be witnessed by at least two competent adults, who needed to be physically present in the room signing the document. Now, under Executive Order No. 202.14, “the act of witnessing . . . is authorized to be performed utilizing audio-video technology . . .” if:
- the person signing presents a “valid photo ID to the witnesses during the video conference;”
- the witnesses have live and direct interaction with the testator, the supervising attorney and each other; and
- the “witnesses must receive a legible copy of the signature page” which can be faxed or emailed or texted to them “on the same date” the document was signed.
If the above conditions have been met, as well as the regular procedures necessary for the execution of specific estate planning documents, the witnesses are permitted “to sign the transmitted page(s) and transmit same back to the person signing. Then, “[t]he witnesses may repeat the witnessing of the original signature page(s) as of the date of execution . . .” if they receive the original signature pages and the electronically witnessed copies within thirty days.
If you wish to create a new or update an existing estate plan, you should contact Westchester County estate planning attorney who can advise you what steps you can take TODAY. Meyer & Spencer, PC is here to give you a piece of mind during these trying times. Please feel free to call or email us at any time.