Estate planning is just as important as ever in the wake of COVID-19, and may feel more urgent than ever before. That being said, the execution (signing process) has changed in light of shelter-in-place orders that have been issued throughout the state, and most recently extended throughout the Bay Area. Before these orders were issued, the signing of estate planning documents would either occur in our office, or offsite through the use of a mobile notary. Currently however, in office signing meetings are a non-option (due the orders forbidding folks from venturing out for non essential tasks). Although some mobile notaries are still in action through all of this, many clients are concerned about the risk of having someone in their home who interacts with the public on a regular basis. Although notaries are trained to follow social distancing protocols during such meetings, it still gives many clients the heebie-jeebies, and rightfully so. So, if estate planning is so important in light of COVID-19, how are documents going to be executed during this time?
Revised Document Signing Protocols In Light of COVID-19
I’m presenting clients with two primary options during this time: Signing documents in front of two disinterested witnesses, and, if that is not a practical option, signing in a manner that does not require any witnesses at all (and then re-signing again with the traditional procedures later on when things stabilize).
Signing in Front of 2 Witnesses
For those who are able to obtain them, having documents signed in the presence of two disinterested witnesses is a viable alternative.
Although notarization of trusts is the common practice, it is not legally required. And while witnesses aren't technically necessary either (more on that later in this post ) having two witnesses to your signature provides greater credibility to the trust document and helps insulate it against future challenges. For that to work, however, those witnesses should satisfy the requirements for witnessing a will (see below).
Any competent adult may act as a witness to a will. However, unless two of the witnesses are “disinterested witnesses” who are not going to benefit under the will, the will is presumed to be a product of duress, menace, fraud, or undue influence. Therefore, it’s preferable to have disinterested witnesses sign the will, particularly if any beneficiary acting as a witness is receiving a larger share of the estate than others.
Witnessing Powers of Attorney and Health Care Directives
For other documents, such as Powers of Attorney and Health Care Directives, those documents are valid so long as the witnesses satisfy the following criteria: Powers of Attorney: Two adult witnesses, neither of which are named as an agent in the document. (See California Probate Code Sections 4121 and 4122) Advance Health Care Directives: Two adult witnesses, neither of which should be an agent named in the document, a healthcare provider, a community care facility provider, or a provider of residential care for the elderly (or an employee of any of the above providers). In addition, at least one of the witnesses cannot be related by blood, marriage, or adoption, and should not be entitled to any portion of the estate of the person signing the document. See California Probate Code Sections 4673, and 4674).
The Problem: Getting Qualified Witnesses Right Now is Difficult for Many
As you can imagine, in many cases it’s going to be quite difficult for people who are faced with a shelter-in-place order due to COVID-19, or who are observing social distancing practices in general, to be able to find two adult witnesses who are not also beneficiaries, relatives, or individuals named in the documents. However, if one is able to obtain such witnesses (such as neighbors, for instance) witnessing the estate planning documents referenced above is a great option. If that isn't practical, then read on.
How to Execute Legally Valid Documents Without Witnesses
Trusts Don't Need to be Witnessed
If you are creating a new California living trust, it doesn't technically need to be notarized or witnessed to be legally effective. California Probate Code Section 15200(a) merely requires a declaration by the owner that he or she is holding their property as trustee of their trust. California Probate Code Section 15206 further provides that the trust declaration method is valid for creating a trust holding real estate so long as the declaration is in writing. Therefore, it is possible to include wording in the trust documentation that suffices as a written declaration to create a valid trust with nothing further other than a comprehensive list of assets attached. We are doing this for many our clients currently.
Wills That Don't Require Witnesses
Certain types of wills (known as holographic wills) do not require witnesses to be valid. These wills require that both the signature and the material provisions of the will be in the handwriting of the person making the will (See California Probate Code Section 6111). In order to avoid any potential issues as to whether the provisions are "material" or not, it is highly recommended that the entire will document be in the person’s handwriting, with no printed text or logos of any kind. There should also be a clear statement written in the will that the person intends that the document constitute their will. We are currently providing specific instructions for our clients to prepare their pour-over wills and wills naming guardians for minor children in this manner during COVID-19 if obtaining disinterested witness signatures is not an option.
Consider Remote Online Notaries for Powers of Attorney and Health Care Directives
If your Power of Attorney and Health Care Directive cannot be properly witnessed and traditional notarization is not an option, there are two ways to proceed: Option 1. Hold off on executing these documents until COVID-19 is less of an issue and the document can be witnessed or (preferably) notarized.
Option 2. If possible, use the services of a remote online notary in a state (such as Virginia) where online notarization is allowed by law. This is a valid option for California residents, because California Civil Code section 1189(b) provides that a certificate of acknowledgment taken in another state shall be sufficient in California if it is taken in accordance with the law of the place where the acknowledgment is made. Therefore, if online notarization services are performed for a California resident by an online notary who is working out of another state where online notarization is allowed by that state's law, the notarization shall be recognized in California.
As of the time of this writing, remote online notarization in the estate planning context appears to be limited to Powers of Attorney and Health Care Directives (and possibly deeds, although getting the local recorder's offices to accept those deeds may be another story). Trusts and amendments to trusts generally don’t seem to be a service that is available for remote notarization at this time (bummer - although that may change in the future). Also, be prepared for the possibility of lengthy wait times and potentially poor customer service in light of the extreme demand these remote notaries are receiving during COVID-19 (they're doing their best).
We're Here to Help You Navigate
If you are a client of ours or are planning to become one, rest assured that we will work with you on an individual basis to implement the best strategies for you immediately, and again later on when things stabilize. Review our website, including the COVID-19 update message, for more information about how you can get started online right away.