When entire cities were forced to shut down last year, many people had to adapt to a new world without in-person services. This disruption hit virtually every business sector, including the practice of law, a notoriously analog industry, which now needed to operate in a digital sphere.
The estate planning world made the jump fairly easily, I believe, since much of the estate planning process could already be done online: signing retainer agreements, collecting data, paying invoices, and viewing draft documents.
However, documents that required witnesses and notarization posed a problem given that in-person execution wasn’t possible during much of 2020 and into 2021. Some states had existing online notary laws and others enacted pandemic-specific laws to allow “remote online notarization” and online witnessing.
Pro Tip: New Jersey and New York both implemented temporary measures in April 2020 permitting notaries to use “audio-video technology.” Florida passed updated statutes in January 2020 that granted the same (Fl. Stat., 117.201–305). For example, in Florida, it doesn’t matter if the testator is in Miami, the witnesses are vacationing in New York, and the notary is at home in Naples; the final signed document will be legally sound. Learn more about wills.
Electronic Will Laws
Importantly, the issue is not digital copies of physical wills. Rather, it’s how one witnesses, notarizes, and executes a will when the witnesses, notary, and executor cannot be in the same place.
What these laws do is expand the process for creating a legally binding last will and testament by allowing the execution to take place entirely online via video conferencing software.
Pro Tip: I am a certified notary public. I also have completed the additional training and certification to serve as a remote online notary. Being able to continue to plan and conduct business during the Covid-19 pandemic has benefited my clients.
However, partially because electronic wills are a relatively new phenomenon and because statutes are sparse and inconsistent, many aspects are still uncertain. Primarily, it remains to be seen what jurisdictions will accept electronic wills and how they will hold up during the probate process.
E-Signed Will Upheld in New York
We received some guidance earlier this year when a New York court admitted a will to probate that was remotely signed, witnessed, and notarized. I believe this is the first case of this kind to be published in New York.
Matter of William Ryan
Here’s the background.
In 2020, New York resident William Ryan was ill, so he hired an attorney to prepare his last will and testament. He had planned to execute his will in the parking lot of his attorney’s office since Covid-19 restrictions were still in place. However, he was admitted to a local hospital on June 1 when his health declined. Luckily, arrangements were made for him to electronically sign his will from the hospital, which he did. Then, two days later he passed away on June 3, 2020.
In August, the will was sent to the probate court in Broome County, New York, for verification. The novel process used to remotely notarize the will was described in the opinion of the Surrogate’s Court.
Diane Nickerson, one of the staff in Mr. Gorton’s office…arranged for a social worker at the hospital to be with Mr. Ryan for the execution of the will. The original will was delivered in a sealed envelope to Mr. Ryan’s social worker at the hospital. The social worker then delivered the will to Mr. Ryan in his room and remained with him at its execution, serving as “videographer” by utilizing a cell phone. Mr. Gorton and two of his staff “attended” and participated in the execution ceremony via a computer in his office in Endicott. Mr. Ryan opened the sealed envelope containing the original will and reviewed the will with Mr. Gorton. A copy of Mr. Ryan’s driver’s license had been provided in advance to Mr. Gorton’s office, allowing Mr. Gorton and his staff to identify Mr. Ryan.
Mr. Ryan was asked by Mr. Gorton if the instrument he was about to sign was his will and responded affirmatively. Mr. Ryan was also asked if he wished Mr. Gorton’s staff to serve as witnesses to the execution of his will, which he also affirmed. Mr. Ryan signed the will, while Mr. Gorton and his staff watched on their computer. The cell phone angle was such that Mr. Ryan could be seen signing the document in front of him.
Immediately after Mr. Ryan executed the will, the original was driven back to Mr. Gorton’s office, where his two staff executed the attestation clause and the witness affidavit, which had been stapled with the original will in a will cover.
I am delighted to see that the Court recognized the validity of the remote notarization process undertaken by Ryan and his attorney. Though the case is in New York, future cases may arise in states like Florida that will further defend remotely notarized and executed wills.
It’s Never Been Easier to Plan for the Future
The increased flexibility of remote online notarization provides opportunities for Florida residents, snowbirds, elderly individuals, or people with restricted mobility to create (or update) legally binding wills. Moreover, given the growing “Work from Anywhere” lifestyle, younger individuals and families can more easily create these necessary estate planning documents in a way that suits them.
We urge you to take steps to protect yourself, your family, and your hard-earned assets and wealth. Whether you are creating your first will or updating an existing document, we can help make the process as stress-free and easy as possible.