The pandemic has forced us to modify many things about the way we practice law. When it comes to estate planning, we've been able to modify our procedures to make sure everyone can stay safe and socially distanced and those who need to get their wills executed and notarized can do so in a safe fashion. Many clients have asked when we will move to electronic wills and trusts. Most of the estate planning process can happen online these days, from the retainer agreement to the data collection to the exchanging of draft documents. While it would be a great step forward, I don't see electronic wills as imminent yet. But as a step forward, a New York court recently admitted a will to probate that was remotely notarized.
Remotely Notarized Wills
In New York, on April 7, 2020, Governor Cuomo provided for a procedure to allow witnesses to sign an electronically transmitted signature page on a will. As the COVID pandemic has continued, using these remote procedures has allowed many people who would be otherwise unable to get the required individuals together for a will signing to be able to get to have their wills properly witnessed. Since that time, we've been operating with these procedures, which let us take advantage of video calls and electronic technology to make sure people can get their estate plan properly executed.
Matter of Ryan
In Matter of Ryan, the Surrogate's Court in Broome County New York was asked to weigh in on the validity of a remotely notarized will when it was presented to the Court for probate. It is believed this was the first published case of its kind in New York. The procedure used by Mr. Ryan's attorney was described by the Court,
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.
This is not the exact procedure that I've been using in my office, but it's a similar procedure. It's a good step forward to see that a Court recognized that these remote ceremonies are a valid way for wills to be executed. Especially with individuals in nursing homes or other facilities where visitors are still prohibited, this ensures that they have the same access to estate planning as everyone else.
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Next Steps
If the pandemic has been holding you back from getting your will created or updated, let's set up a Legal Strategy Session to discuss your options for a safe, socially distanced estate plan signing and get that estate plan crossed off your to-do list.
