Estate Planning (Un)Disrupted — Validity of Electronic Witnessing and Notarizing Amidst COVID-19

The COVID-19 pandemic has been devastating across the globe. The uncertainty of the coming weeks and months is discomforting and scary. The impact of the coronavirus is immeasurable and far reaching. While nearly every aspect of everyday life has been disrupted, your Estate Planning does not have to be. Governor Cuomo has authorized a window of time* where certain documents signed using audio-visual (AV) technology are given legal force — documents which required physical presence signatures to be valid pre-COVID-19.

A few documents that may now be signed using AV technology and be legally valid in New York State include certain documents requiring witnesses (Will, Health Care Proxy, Statutory Gifts Rider (SGR), Trust, and Statement of Disposition of Remains) and any document requiring the witnessing of a Notary Public (ex. Power of Attorney, Real Estate Deed). Here’s what you need to do in order to give legal force to your electronically witnessed and notarized documents:

For Electronic Witnessing of Certain Documents:

1. Audio-Visual Conference. The signor, witness(es) and attorney will use AV technology to have a live, real-time conference so that all parties have direct interaction with each other (no pre-recorded videos).
2. The signor will present valid photo ID during the meeting to any witness not personally known by him/her.
3. The signor will sign the document, facilitated by the attorney, while the witnesses observe his/her signature. The signor will then send a legible photograph/copy of the signature page (via text, fax, email, or other electronic means) to the witness(es) on the same date the pages were signed.
4. Witnessing Phase I. The witness(es) will sign the copy, on the same date the original was signed by the signor, and transmit a photograph/copy (via text, fax, email, or other electronic means) of the electronically witnessed document back to the signor.
5. Mailing the Original. The signor will then circulate the original document and the electronically witnessed copies to the witness(es) for Witnessing Phase II. All witness(es) must receive the original within 30 days of the date of original execution.
6. Witnessing Phase II. The witness(es) will sign the original signature pages as of the date of original execution within 30 days of the original execution.

Keep in mind that these provisions only apply to your Will, Health Care Proxy, Statutory Gifts Rider (SGR), Trust, and Statement of Disposition of Remains. You will lose the ability to use AV technology to sign the above documents on May 7, 2020*. However, Governor Cuomo may extend this sunset provision so keep an eye out for updates!

For Electronic Notarizing:

1. Audio-Visual Conference. The signor and the Notary Public will use AV technology to have a live, real-time conference so that they have direct interaction with each other (no pre-recorded videos).
2. The signor will present valid photo ID during the meeting to the Notary if not personally known by him/her.
3. The signor must be present in New York State and shall make a verbal affirmation of the same to the Notary.
4. The signor will sign the document while the Notary observes his/her signature. The signor will then send a legible photograph/copy of the signed document (via text, fax, email, or other electronic means) directly to the Notary on the same date it was signed.
5. Notarizing Phase I: The Notary will notarize the document on the same date the document was signed by the signor and send a photograph/copy (via text, fax, email, or other electronic means) of the notarized document back to the signor.
6. Mailing the Original. The signor will then mail the original document and the electronically notarized copy to the Notary, so that the Notary receives the same within 30 days of the original execution, for Notarizing Phase II.
7. Notarizing Phase II. The Notary will notarize the original document as of the date of original execution within 30 days of the original execution.

These provisions are additionally limited and are currently set to expire on April 18, 2020*. Stay tuned for updates regarding the legal viability of electronic notarizing.

We understand the unsettling nature of our present time. We are equipped to answer your questions and facilitate the signature of your legal documents to give you some peace of mind during this unprecedented time. Contact our team of experts to get started and rest easy knowing you are in good hands at The Marrone Law Firm. Visit our new Will Builder to generate your Will in 3 easy steps from the comfort of your home!