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George F. Bearup, J.D. Senior Legal Trust Advisor

12-May-20

Remote Execution of Estate Planning Documents in a Pandemic

Take-Away: Dealing with the formal execution of estate planning documents during a pandemic can be a real challenge. While the Governor’s two Executive Orders has facilitate the execution of Wills, Trusts, and Durable Powers of Attorney, several questions remain when attempting to comply with the requirements of those two Executive Orders that are intended to permit remote execution of documents under a ‘stay-at-home’ order.

Background: The Governor entered two Executive Orders in March that are intended to facilitate the execution of legal documents when we are ordered to stay-at-home and have no close physical contact with others. [Executive Orders 2020-4 and 2020-74.] Michigan adopted the Uniform Electric Transactions Act years ago, but that Act  expressly excluded the execution of Wills, Codicils, and testamentary trusts. [MCL 450.831 et. seq.] The purpose of the recent Executive Orders is to authorize the use of electronic signatures, remote witnessing of signatures, and remote notarization via two-way real time audio visual technology. While the Executive Orders are helpful, they still raise several questions with regard to compliance with many of their requirements.

Summary of Michigan Execution Requirements:

Will: To be a valid Will in Michigan, the testator must be at least age 18, be of sufficient mental capacity [defined in MCL 700.2501(1)] and signed by the testator, or in the testator’s name by a third-party at the testator’s direction. . [MCL 700.2502(1)(a)(b).] There is no statutory requirement that the Will be dated. Michigan also recognizes a holographic Will if the testator’s signature and the instrument’s material portions are in the testator’s handwriting. [MCL 700.2502(2).] No notary is required for a validly executed Will.

Trusts: To be a valid Trust in Michigan, the settlor must be at least age 18, and be of sufficient mental capacity to create a Trust. That mental capacity is the same as to execute a Will. There is no requirement that the Trust be dated or signed, as oral trusts are permitted in Michigan, subject to stringent evidentiary standards. Nor is a notary required for a valid Trust.

Durable Power of Attorney: The principal under a durable power of attorney cannot be younger than age 18. A minor cannot appoint an agent. Woodman v Kera, LLC, 486 Mich 228 (2010.) An enforceable durable power of attorney must be signed and dated by the principal, or a notary acting on the principal’s behalf. [MCL 700.5501(c).] There must be two witnesses to the principal’s signature, neither of whom is the agent. A notary can be used as an alternative to the two witnesses. The durable power of attorney must be acknowledged and signed by the notary. [MCL 700.5501(2)(b).] Note, a power of attorney which is non-durable, meaning that it is invalid upon the hour  mental incapacity, is not required to either be witnessed or notarized.

Consequently, some important estate planning documents in Michigan do not need either witnesses, or notaries to be valid, but they are strongly recommended.

Executive Orders: The Executive Orders signed by Governor Whitmer are helpful to authorize the remote execution of estate planning documents, but some of the language used in the Orders  leaves questions with regard to how to comply, so great care needs to be exercised with probably more documentation than would otherwise be required. Some of the requirements contained in the Executive Orders follow with italicized words or phrases indicating where there needs some clarification or direction as to what is actually required (or acceptable), or what will be sufficient to satisfy the Order’s requirements-

  • There must be two-way real time audio-visual technology which must allow the direct interaction (not sure what that exactly means) between the signatory ( i.e. the testator, settlor, principal, patient) and with the witnesses, notary and each other;
  • That direct interaction must be recorded and archived for at least ten years by the notary. If a notary is not used, then the direct interaction record must be retained (where, how, and safeguards are provided in the Order for the notary- do the same apply to the signatory?) by the signatory for at least 3 years;
  • Each signatory must affirmatively represent that he or she is physically located in Michigan, or otherwise, must comply with other conditions if they are not then in Michigan;
  • The signatory must transmit by fax, mail or electronically  a copy of the entire signed document (does this include Trust Certificates?) directly to the notary on the same date it was signed and witnessed within 72 hours of execution;
  • The notary and witnesses must sign the transmitted copy of the document and return the signed copy of the document to the signatory within 72 hours.
  • Witnesses must then return the signed document to the signatory (not their lawyer?)within 72 hours by fax, mail or electronically;
  • The witnesses to the remotely signed document must be prepared to attest to each of the following requirements: (i) the signatory must affirmatively state during the interaction what document his or she is signing (does this include the Trust Certificate and all funding instruments?); (ii) the signatory must show the witnesses the title and signature page in the document; (iii) each page of the document must be numbered with both the page number and the total number of pages, e.g. ‘page 7 of 29’; and (iv) each act of signing must be captured sufficiently up close (how far away? Able to read the print on the page, or just the ability to see there is print on the page?) .
  • With regard to notaries, if the signatory and witnesses are not personally known to the notary, the signatory and witnesses must present satisfactory evidence of identity (does the notary make that determination of what is satisfactory, or a probate judge?) during the videoconference. In addition, the notary must confirm that the signatory and witnesses affix their signatures in a manner to render any subsequent changes to be tamper evident. Finally, the official date and time of the notarization must be the date and time when the notary actually witnessed the signature.

Conclusion: While estate planning documents can now be remoted executed in Michigan, the problem is trying to comply with many of the vague conditions contained in the Executive Orders. Examples include: interaction, captures sufficiently up close, personally known, manner to render any subsequent changes to be tamper evident. With all of these additional requirements, it would be a practical suggestion that any attestation clause used in a remotely executed  Will, Trust or Durable Power of Attorney recite all of these conditions as a helpful reminder to the witnesses and notary of what conditions that they must meet in order for the remotely executed legal document to be valid and enforceable. An example of a witness’ attestation might be:

I Bill Brown, in the presence of John Smith, testator, and the other witness, Mary White, have witnessed the execution of the Will of John Smith remotely with the use of real-time two-way audio visual technology while each of us is located in the State of Michigan. This Will was witnessed in a direct interaction with the testator. Prior to signing the Will, John Smith affirmatively stated that he was signing his Will and prior to signing his Will he showed me the title page and the signature page of his Will, and each page of his Will which was numbered, and I was sufficient close to be able to observe both the Will and John Smith’s execution of the Will.

While obviously Governor Whitmer has a lot on her plate these days, hopefully additional Executive Orders can be signed to provide guidance on remotely executed Wills and Trusts.