On May 1, 2020, the MSBA’s Estates & Trusts Section presented A Brave New World: Remote Execution of Estate Planning Documents. This webinar discussed the legal and practical implications of emergency orders for the remote notarization of documents in general, and of estate planning documents in particular. More than 400 participants watched as attorneys Leanne Broyles (Frost Law), Jonathon Lasley (Stewart, Plant & Blumenthal), Lynn Sassin (Gordon Feinblatt) and David Sessions (Franke, Sessions & Beckett) reviewed the Governor’s orders, and addressed the challenges and opportunities they present for practitioners and their clients during the COVID-19 emergency. They discussed technological considerations, made best practice recommendations, and concluded with a step-by-step videotaped demonstration of a remotely notarized and witnessed document execution.

Mr. Lasley provided the legal context, describing the interplay between the executive order authorizing remote notarizations, and a separate order temporarily abrogating statutory live witnessing requirements for wills and advance medical directives (which do not need to be notarized), and powers of attorney (which do). He walked through the exacting requirements for a valid remote notarization contained in the order and in guidance offered by the Secretary of State, and the less technical but equally important requirements for remote witnessing. Among the key concepts discussed throughout the presentation were the requirements that all signers be in each other’s “electronic presence” during the execution, and that the “supervising attorney” eventually assemble the executed documents to create a certified copy of them.

With the legal framework in place, Ms. Sassin addressed pre-execution planning and protocols for managing the document signing process. She discussed the need to assemble the execution team in advance, communicate their roles, ensure their technological competence, and prepare the client, the witnesses and the notary for what to expect. She made several suggestions for managing chain of custody issues that arise when participants are in several locations, rather than together where the attorney can fully control the process. The need for the attorney to understand, test and practice with the technology, Ms. Sassin explained, is paramount as functionality can vary depending on who set up the meeting or the devices used by the participants.

The execution process, Mr. Sessions suggested, can be reasonably straightforward if everyone is properly prepared. He addressed the practical considerations of remote execution, including the need to adjust camera angles and screens to enable all participants to see each other and the documents they are signing, and ultimately to witness the execution itself. Methods for determining who is in the room (in anticipation of later undue influence allegations), confirming what each person is signing, clarifying the intention of the client both to execute the document and have it witnessed or notarized remotely, and for formally affixing the signatures were also discussed. Throughout their presentations, Mr. Sessions and the other presenters compared the features of several different video conferencing and document signing technologies.

Ms. Broyles then addressed post-execution issues, beginning with the need for the supervising attorney to assemble the executed documents and prepare the supervising attorney certifications. She emphasized the need for the client to understand that the document is not legally executed until this has been accomplished, and to ensure the means and manner for all participants to get their documents back to the attorney promptly. Document retention practices were discussed, and sample supervising attorney certifications recently prepared by the Estates & Trusts Section Council for the remote execution of a will, an advance directive, and a power of attorney were provided.

The full presentation, which included a 30 minute question and answer period, can be viewed here.