March 26, 2020 – If you are considering whether you can execute your estate planning documents during isolation in New York City, there are a few options available for a short time to do so.
Until April 18, 2020, electronic notarizations are allowed in New York State. The Executive Order issued by Governor Andrew Cuomo provides a process to ensure that such notarization is valid. This means that you can sign Powers of Attorney, Trusts, and Affidavits by video conference with your attorney, provided it is signed and notarized by the expiration date. Because all these documents require notarization, they must be signed before April 18, 2020, to be valid under the electronic notarization procedures.
An important document that does not require a notarization is a Last Will and Testament. Accordingly, it is not covered by the Executive Order. Like most other states, New York State does not provide guidance on virtual supervision of Will executions and there is little to no case law on the subject within the State.
Statutory law (NYS EPTL 3-2.1) provides that a Will must be executed “in the presence of” at least two witnesses (or acknowledged by the testator to the witnesses within 30 days of signing). Historically, this has been interpreted and practiced to mean in the physical presence. When the statute was enacted, there was no existence of today’s technology so the drafters likely could not have envisioned such a scenario.
There have been submissions to the Governor’s office to address the electronic supervision of Wills, such as was done for electronic notarizations via Executive Order. However, there is presently no such Order addressing remote Will executions. During this scary and unprecedented time where almost everyone in New York City must self-isolate, your attorney may have considered best practices to allow you to sign your Will either remotely via audio/video equipment or by providing instructions on obtaining witnesses if you feel safe to do so.
The potential risk of executing a Will via remote supervision is that such a Will submitted for probate may be deemed to not be in accordance with the statutory process for due execution. Despite the uncertainty, it might be a better option to consider a remotely executed Will than to having your estate pass by intestacy.
Please contact us if you have questions on considerations to prepare and execute estate planning documents during this time.